The Way the Court Gauges Consensus (and How to Do it Better)

Abstract

The Supreme Court gauges whether a national consensus against a punishment exists by reference to a number of objective indicators. Despite its reliance on these external indicators, scholars have characterized the Court’s consensus analysis as little more than a crude charade performed by outcome-oriented Justices. The consensus analysis does lack both transparency and a stable infrastructure, but as this Article demonstrates, commentators are too quick to overlook the possibility that a stable and tightly theorized framework could equip the Court to gauge societal consensus and reduce the perception that the analysis is outcome-driven.

When it comes to consensus analysis, the Court should mend it not end it. This Article provides the first systematic analysis of consensus analysis. It maps the various indicators of consensus upon which the Court relies: the number of jurisdictions that legislatively authorize a punishment, the number of sentences imposed, and, in death penalty cases, the number of executions performed. We explore the theoretical justifications and relative importance of each consensus indicator. We then propose a realistic and transparent framework to position the Court to better comprehend whether these indicators establish that there is a national consensus against a particular punishment.

Finally, this Article illustrates the ease and effectiveness of our proposed framework by using the death penalty as a case study. To assess whether a consensus against the death penalty exists, we consider not only the six states that have recently shed their capital punishment statutes, but also make use of a comprehensive database of death sentences and executions that have occurred in America since 2004. We find that most American jurisdictions have legislatively abolished the death penalty or else have not sentenced anyone to death or not performed any executions since 2004. In other words, the death penalty is -- or is rapidly becoming -- obsolete.

Keywords: Supreme Court, Eighth Amendment, National Consensus, Death Penalty

JEL Classification: K14, K41