Supreme Convolution: What the Capital Cases Teach Us About Supreme Court Decision-Making

Abstract

Gregg v. Georgia, 428 U.S. 153 (1976), and its accompanying cases, shaped the modem death penalty. The authors interviewed more than fifty lawyers, law clerks, and academics who were involved in the litigation and decision of Gregg and its predecessor, Furman v. Georgia, 408 U.S. 238 (1972). This research is the basis for Prof. Mandery's book, A Wild Justice. We present it here as part of a discussion of judicial decision-making and as evidence of the limitations of conventional legal research. We argue that only a mixed jurisprudential model can explain the individual Justices' behavior in Gregg. We further argue that conventional legal research, with its emphasis on published judicial opinions and consideration of the Supreme Court as a monolithic entity, is inherently conservative and unhelpful.

Keywords: Jurisprudence; Capital Punishment

JEL Classification: K40