But the legislatures had let the death penalty laws remain on the books, and had enacted new ones, without considering the constitutional and moral questions that stemmed from the fact that juries and judges used it so seldom. The legislatures were not facing up to their jobs. White was uncertain what to do.
To Marshall, Stewart's concerns about being part of a
5-
to
-4
majority to uphold the death penalty made Stewart a likely
fifth
vote. Marshall still needed a
fourth.
There were two leading candidates.
Blackmun, who, as Marshall knew, was tormented by the issue, seemed the more likely. As an appeals court judge, he had written the most recent federal opinions on cruel and unusual punishment in the Arkansas prisons.* He had also, while on the appellate court, expressed deep reservations about the death penalty in another case
(Maxwell v. Bishop)
and had finally voted to uphold the death penalty only because the Supreme Court had done so. Now that Blackmun was on the highest court in the land, Marshall hoped that he would vote his conscience.
* Jackson
v.
Bishop.
Powell
was
the
other
possible vote, Marshall thought.
A
lthough
Powell had not asked a single question during
o
ral argument,
Marshall could see
that
he was doing his homework. Powell was a
product
of the enlightened white establishment that Marshall had for thirty years been trying to shock into collective remorse. Marshall hoped that Powell might be able to see capital punishment as a civil rights issue. At least, he seemed open on the question. Marshall thought that, in the end, Powell's gut reaction would determine his vote.
The conference met on the death cases on January
21, 1972.
The Justices agreed that all votes would be very tentative, even more tentative than usual. Marshall figured that with Blackmun and Powell speaking seventh and eighth, the preliminary outcome would not become clear until the conference had gone once around the table.
The Chief began. He observed that if he were a legislator, he would vote against the death penalty, but he was not. He would uphold. Clearly the penalty was constitutional.
Douglas and Brennan argued to strike the death penalty as Marshall had expected.
Then, there was a suprise. Instead of hanging back, waiting to see whether he might be the fifth vote to uphold, Stewart indicated that he was inclined to vote to strike the current capital punishment laws. He would not go along with a sweeping Eighth Amendment abolition of the death penalty. But the randomness and arbitrariness of the sentencing decisions made the laws "cruel and unusual."
Marshall was pleased. He now had four votes. But White and the three Nixon appointees had not spoken.
Then came another surprise. White said that he too was troubled by the infrequency. It had changed his perspective. Infrequency nullified the state interest in deterrence. He too was inclined to vote to strike.
Blackmun and Powell voted tentatively to uphold the laws. Rehnquist voted firmly to uphold.
Though he was delighted by White's vote, Marshall was more than a bit skeptical. White's had been an unlikely vote, and it seemed shaky.
Given the tentative nature of their expressions, and the extraordinary importance of the cases, the Justices each agreed to write a separate opinion. That would give them nine opinions to consider. The full range of views and arguments would be presented.
Burger suggested that the conference discussion and the result, since it was not really final, be kept from the clerks and all other Court personnel, as had been done in the Charlotte busing case the term before. He also requested that all draft opinions be circulated only to the Justices.
"Boys, it is a surprise to me, but the death cases seem to be coming out
5
to
4
against the death penalty," Brennan told his clerks after conference. But the situation was fluid, he added. White and Stewart were very unsure of grounds on which to base a decision to strike the death penalty. Brennan was particularly concerned about White. It was essential to hold him, but Brennan wasn't optimistic.
Worse still, both Stewart and White had to square their new positions with their opinions in the death case the year before. There might be arguments to strike down the laws, but the arguments had been settled in the
McGautha
case the term before.
Marshall, with casual glee, lost little time violating Burger's secrecy mandate. When he instructed one of his clerks to circulate his previously prepared opinion, he was asked whether the clerks in other chambers should get the usual copies. "Sure," he responded. "Why not?"
The fifty-eight-page draft was an unusually scholarly and comprehensive treatise on the history of the death penalty in America and England. Marshall argued for an absolute ban and had assembled every conceivable argument that the death penalty was disciminatory. But the draft did not speak to Stewart's or White's concerns.
A month later, the California Supreme Court decided that the state's death penalty violated the California constitution's prohibition against "cruel or unusual punishment." Douglas's chambers got advance notice of the decision, and within three days, Douglas had distributed a
per curiam
draft dismissing the one hundred California cases that were awaiting the Court's ruling.
Burger was upset by the California decision. It deprived the Court of the most brutal of the five cases that had been argued: a cold-blooded rape-murder. If there was an argument for capital punishment, it was in such a case
(Ai
kens v. California).
He stalled the proposed dismissal. The Chief was worried that the California decision would add weight to the argument that contemporary values were evolving toward an abolition of the death penalty. They could wait on the dismissal question until they decided the other cases, he argued.
Still unsure where the cases before them would finally come to rest, the conference agreed to wait.
When Powell finally accepted his nomination to the Court, he had never really pondered the fact that he might have to make a decision with such profound moral, ethical, almost religious implications. A light sleeper at best, he had awakened several times in recent nights, worrying about the death cases. It was not so much the emotional issues that preoccupied him, as the intellectual ones. He wanted to be sure that he did the right thing, that he had considered all the arguments. He knew that if he were the governor of a state, he wou
ld be susceptible to arguments
for granting clemency in death cases.
But he was a Justice. His task was to interpret the Constitution. Mercy might be appropriate in some cases, but he was responsible for making a rule of law for all cases. That was what bothered him most. He felt that he was in many ways ill prepared. He had practiced corporate law for nearly four decades and had never aspired to be a judge. His experience was in arguing cases, not deciding them. He directed a clerk's attention to the
403
volumes of the Court's published opinions that lined the wall of his office. "Bill Douglas, now, he knows what is in those books," Powell said. "I don't."
Powell had confidence in his legal skills, but he was not comfortable or familiar with all this material. He had always operated from solid ground, had always been as well prepared as anyone. In legal circles, he had earned a reputation for excellence. Now, for the first time in his life, Powell faced the possibility that he might not do a good job. Fear became an unarticulated motivation. There was only one way to catch up. He intensified his already grueling work schedule, resolving to read every Court opinion ever written on the death penalty. To make more time, he even gave up going to church on Sunday.
Accustomed to having law partners to consult with, dozens of junior associates to do research, and numerous secretaries to do the typing, Powell was surprised that a justice in the highest court in the nation had a staff of only five . . . three clerks, a secretary, and Hugo Black's former messenger, Spencer Campbell.
As he read through the cases and the companion material, Powell sensed that his initial vote at conference had been right. Nearly every case and all of the research reinforced his position. It would be an extreme example of judicial activism to claim that the Constitution prohibited the death penalty. Since it was clear to Powell that Stewart and White were unsure, he began to feel instinctively that he could sway them. He was the most flexible among the conference minority, more in the center than Burger, Rehnquist or Blackmun. It might be possible to win another vote for his side and switch the Court. As he read on, excerpting cases, Powell discovered an unbroken line of precedents to uphold the death penalty. The specific reference to capital punishment in the Fifth Amendment of the Constitution certainly implied that it was acceptable at the time. Striking down the death penalty would mean that the Court was substituting its conclusion for the decisions of the various legislatures. It would show a basic lack of faith in democracy.
This opinion was Powell's first exercise in judicial craftsmanship. He became convinced, not only of its correctness, but of its power to persuade, though he had some difficulty initially in translating his conservative and cautious instincts into judicial pronouncements. His views as a citizen suddenly seemed less applicable than he had expected. But he found a way every time, locating precedents to support his conclusions. The greatest help came from reading Harlan. Powell knew that those who had served with Harlan— even the Justices who had bitterly disagreed with his views —had held him in great respect. Harlan had been the Court's scholar. Powell began to study his opinions more closely. They made the most sense. But if he were to win over Stewart or White, Powell felt, he had to fully understand and answer the arguments from the other side.
Powell found the one issue that seemed to be at the heart of Harlan's hesitation about the death penalty. It was one of Douglas's concerns and probably lay behind Stewart and White's willingness to strike the laws. It was racial discrimination.
Powell was willing, for the sake of argument, to accept the statistics that appeared to show a pattern of some racial discrimination in the imposition of the death penalty. He suspected that both Marshall and Brennan had hoped this consideration would touch his conscience. It was the very issue that had caused Harlan to waiver three terms before. Powell had no illusions about racial discrimination. He had been insensitive about discrimination for too long, blindly accepting the tradition of separation of races until the
1950s.
But the South and Powell had come a long way.
Blacks probably had been discriminated against and more often given death sentences, just as they had been discriminated against in every other way. But these were things of the past. Juries now included blacks, or "minority group elements," as Powell referred to them. Trials were fairer. Since a defendant, white or black, was now given every imaginable protection, discriminatory punishment was much rarer. A perfectly fair trial was an illusion, Powell believed. If juries were to be allowed discretion, some discrimination might intrude. But that issue had been resolved in the prior term. The impressive body of precedent could not be ignored, Powell wrote in his draft. "No Justice of the Court, until today, has dissented from this consistent reading of the Constitution."
In order to answer Marshall's argument that the death penalty was excessive in cases not involving murder, Powell noted the facts in the two rape cases under review. "Petitioner Jackson held a scissors blade against his victim's neck. Petitioner Branch had less difficulty subduing his sixty-five-year-old victim."
Powell conceded, however, that the death sentence could be excessive and constitute a "cruel and unusual punishment" in a given case. Therefore, cases should be considered on an individual basis. This consideration, Powell felt, was important to those who worried about instances of racial discrimination. But striking all the death penalty laws was simply unnecessary.
Powell's third revision, forty-nine pages, was circulated on May
12.
Burger, Blackmun and Rehnquist immediately indicated that they would join Powell's opinion, although none had yet finished writing his own. White and Stewart also complimented Powell on his opinion, its thoroughness, the depth of the research.
Powell misread Stewart and White's polite encouragement as enthusiasm. Unfamiliar with Court protocol, he did not understand the tradition of complimenting the "learned Judge" before ripping him to shreds. The tradition helped keep disputes on an impersonal plane, or at least maintained the facade that battles were legal and not to be taken personally.
But Powell was now sure that he could get either Stewart or White to join him. A majority opinion his first term on the major case of the year would be quite an accomplishment. The prospect confirmed Powell's belief in the importance of teamwork and quiet persuasion. He had been a success in his law firm because he was cooperative. It had brought him smooth, neat, timely achievements.
Powell admired Brennan's easy manner of lobbying, his warm solicitation of views, the gentle prodding of his hand on a colleague's elbow. But it was Powell's style to be indirect. He had laid out a comprehensive view of the case. He would not patronize Stewart or White. He had no intention of overplaying his hand. He was sure that his opinion boxed them in.
The logic was overwhelming, particularly on the question of the juries' discretion to impose the death penalty that had been decided in the
McGautha
case of the previous year. It was too high a hurdle for Stewart and White to leap. They would have to overrule it, and that was an unlikely prospect only a year after a major constitutional decision. Powell was familiar with Stewart's and White's devotion to precedent, expecially recent precedent. Powell told his clerks, "It looks like we'll get our Court."
The clerk who had labored over the opinion despite his personal opposition to capital punishment was sickened at the prospect.
Stewart, however, was still looking for a ground on which to base a decision striking the death penalty laws. One of his clerks drafted an opinion that came to the sweeping conclusion that th
e death penalty was cruel and un
usual in all cases. It agreed with Brennan and Marshall's view that society had evolved beyond imposing the death penalty. Stewart rejected it. He wanted to take a smaller step, one that attacked the current administration of the laws, nothing more. Randomness, lack of uniformity, basic unfairness—those were the issues.