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 firstname.lastname@example.org.
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