Pennsylvania Capital-Star
May 10, 2022
In 1972, not long after the decision in Roe v. Wade,
the U.S. Supreme Court was asked to determine whether the death penalty
violated the Eighth Amendment ban against cruel and unusual
punishment.
The death penalty had been around for more than
three centuries in North America by the time the court was asked to review
it. However, there hadn’t been an execution in the United States for five
years preceding 1972.
Not unlike the case currently before the high court
regarding abortion, its decision in 1972 known as Furman v.
Georgia was controversial.
The startling leak of Justice Samuel Alito’s draft
opinion in Dobbs v. Jackson Women’s Health has revealed massive
fissures between the justices. Chief Justice John Roberts has worked
assiduously at protecting the integrity of the court.
The leaked opinion does not appear to include Roberts with the majority, at
least at this point, of Justices Alito, Clarence Thomas, Brett Kavanagh, Neil
Gorsuch and Amy Barret.
Supreme Court custom provides that the senior member
of the majority in a case pending before the court would appoint a member of
the majority to write the opinion. In Dobbs, it would appear that
Thomas assigned the duty to author the majority opinion to Alito.
If Roberts is opposed to overruling Roe v.
Wade, can he learn anything from studying Chief Justice Warren Burger’s actions
in the Furman decision?
Evan J. Mandery’s book, “A Wild Justice,” examines
just how close the Supreme Court came to abolishing the death penalty in
1972.
As Mandery tells it,
when Furman reached the court three justices opposed the death
penalty — William O. Douglas, William J. Brennan, Jr. and Thurgood
Marshall. Two additional justices — Potter Stewart and Byron White — were
leaning toward abolishing the death penalty.
After Furman was argued the court met in
conference. A poll was taken among the justices. Marshall, Douglas and
Brennan voted as anticipated. White and Stewart agreed to vote with the three
liberal justices to abolish the death penalty.
According to Mandery, there was a five vote majority
to abolish the death penalty. Justice Brennan would be charged with
assigning the responsibility to write the majority opinion.
At that point Burger, who was opposed to abolishing
the death penalty, did something brilliant to gain control of the process. He
switched his vote to the majority. As the chief justice, and now a member
of the majority, he could pick the author of the majority opinion.
As Mandery pointed out, Burger took the
unprecedented position, that all nine justices should write their own opinion
because “no coherent rationale had emerged” during the course of the
conference. Under Burger’s strategy the coalition to abolish the death penalty collapsed.
Justices White and Stewart made a side deal to find,
not that the death penalty should be abolished as a cruel and unjust
punishment, but rather that it was merely broken.
As a result, a number of states amended their death
penalty statutes, and the death penalty was back within four years and, as we
all know, is still around today.
Could, or can, Roberts use Burger’s strategy to
re-direct the decision in Dobbs?
Roberts could switch his vote to the majority and as
chief justice he could select himself or someone other than Alito to write the
majority opinion. Instead of overturning Roe, he could forge some
compromise that doesn’t directly overrule nearly fifty years of precedent.
Maybe Roberts can forge a compromise that puts in
place some additional restrictions such as those proposed in Mississippi — no
abortions after 15 weeks. He has, in the past, signaled his support for such a
compromise.
Although the five conservative justices indicated
that they agree with overturning Roe v. Wade, they may not have agreed to
join in Alito’s opinion. This leaves open the opportunity for deal making.
Roberts has always been protective of the court’s reputation. This is his
opportunity to save the court from the tarnish of partisanship.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former elected district attorney of Lawrence County, Pennsylvania. He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com.
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