Brennan followed Stewart's ups and downs closely. The two talked several times. Through his back channel to Stewart's clerks, Brennan took his colleague's bearings very carefully, trying to determine Stewart's precise concern. It was soon obvious. Black had been right. The
700
people on death row—
600
now after the California decision—were the issue for Stewart. It was hard for the Justices to feel removed from the pound of sodium cyanide pellets or the
2,000
volts that would extinguish those lives.
In one of its briefs, the Inc. Fund had included some eyewitness descriptions of executions. "When the executioner throws the switch that sends the electric current through the body, the prisoner cringes from torture, his flesh swells and his skin stretches to a point of breaking. He defecates, he urinates, his tongue swells and his eyes pop out. In some cases I have been told the eyeballs rest on the cheeks of the condemned. His flesh is burned and smells of cooked meat. When the autopsy is performed the liver is so hot that doctors have said that it cannot be touched by the human hand."
"Potter will not pull the switch on
600
people," Brennan told his clerks. "I know Potter is firm, but no one knows what Byron is going to do," he said. For practical purposes the case was deadlocked,
4
to
4,
with White up in the air.
Stewart agreed with Brennan that White was unpredictable. White had a technique for dealing with hard cases and decisions. He would set the matter aside for a while and then take it up again, weeks or months later. The important factors often sorted out over time. "You may think you are not thinking about it, but maybe you are," he once said. White had put the death cases aside.
In early June, Stewart began writing his opinion, working in his study at his home in Northwest Washington. It was a matter of writing and reasoning. No amount of research would solve the problem now. He sought to narrow his opinion as much as possible, to emphasize that he was addressing the specific state laws that were before the
Court and not whether the death penalty was "cruel and unusual."
It was still the randomness that bothered him. Stewart looked for exact words to describe the few who were selected from among the many. He chose
capriciously, wantonly,
and
freakishly.
And he searched for the perfect metaphor. "These death sentences," he wrote, "are cruel and unusual in the same way that being struck by lightning is cruel and unusual." The system of rule by law had broken down. The death penalty was random justice, and random justice was injustice. Stewart was able to say all he needed to say in ten paragraphs.
On Saturday morning, June
10,
White was in his office. Setting the matter aside had worked. He was going to vote to strike the specific laws, but not to abolish the death penalty altogether. Infrequency defeated the legislative will —the state's genuine interest in deterrence and retribution. "But common sense and experience tell us that seldom-enforced laws became ineffective. . ." he typed on his ancient manual typewriter, with its several missing keys. If the laws didn't work, the state's interest evaporated. The death penalty had ceased to be a "credible threat" or to serve the "social ends" or the "public purposes" of a deterrent. He too said what he had to say in ten paragraphs.
At about
11
o'clock White summoned his three clerks. He wanted them to do some research on the
125
death penalty cases on which cert petitions were pending. Did these other death penalty laws also provide the judge or juries with the option of imposing the death sentence? Or were some of them mandatory laws that automatically imposed the sentence for certain specified crimes? He also wanted more statistics on how often juries or judges imposed the death penalty when it was an option.
White's clerks left his office. They knew nothing more than what they had heard on the grapevine: that White had tentatively voted months before at conference to strike the laws. White had never told them. They had had Socratic dialogues with him, but he had never tipped his hand.
The clerks spent three frantic hours researching White's questions. The cert petitions did not indicate whether the laws in each case had provided for optional or automatic sentencing. So they had to look up each law. It was after lunch when they finished.
Only California had a mandatory death penalty provision, and fortunately, they no longer had to deal with it. In no other case that was being heard was the death penalty automatic. The laws of each state provided for discretion and therefore were similar to the Georgia and Texas laws.
White's clerks realized that this made the present cases more important. The decision in these two cases would apply to similar state laws, and every one was virtually the same.
About
3
p.m
., White called his clerks in again. He was going to vote to strike the laws. The three clerks were overjoyed, but they held themselves back. White was uncomfortable with expressions of feeling.
White explained that his opinion, though it would apply to all the state laws that were now in force, was limited to the discretionary laws. Moreover, it invited the state legislatures to consider other types of laws. He said that he personally favored laws that imposed an automatic death sentence upon conviction for specific heinous crimes, such as the assassination of a President or a presidential candidate—crimes that had cost him two friends and the country two leaders, John and Robert Kennedy.
White resented the fact that the state legislators avoided the issue. It was time they dealt with it. If they wanted a death penalty, they would have to say so and enact new ones. White read the clerks his opinion.
One of them had an observation. "I think that overrules
McGautha sub-silentio"
(without explicitly saying so), he suggested.
White scowled. The other two clerks, out of White's line of vision, frantically motioned to their colleague to drop the point.
The clerks took a copy of the opinion back to their office. It was not White's usual craftsmanlike writing. There were no footnotes or citations. Their boss seemed to have no vanity about this opinion.
White's draft was more like a trick solution, the kind he was fond of using in debate. It was a short essay on the death penalty. He had taken the government's argument on the deterrent value of the death penalty and had turned it around. White had determined simply that the basis of randomly selecting a handful of people to die was irrational.
His clerks found it ironic that the decision to save all the lives on death row revolved not around any notion of unfairness, but on the practical interests of the state in putting them there. Still, the clerks were satisfied that White had reached the right result. It was more than they had expected. They took the draft, made a few small changes, and retyped it, hoping he wouldn't notice that they had altered a few words.
White had written that he did "not
at all
intimate" that every death penalty law would be unconstitutional. The clerks thought that was too explicit an invitation to the states to try again to meet his objections with new, carefully drafted laws. They tried to get White to drop the words "at all," but White refused.
Stewart thought that his opinion and White's said the same thing. When joined with the separate opinions of Douglas, Brennan and Marshall, that made a majority to strike all the current death penalty laws.
Though technically not abolishing the death penalty, Stewart felt that the moral authority of such a Court pronouncement would end the issue. He was fairly sure that the states would not enact the barbaric mandatory laws. The Court would never again have to face the death penalty.
At a conference called to discuss the status of unresolved cases, White raised the possibility that the term's decision on the death penalty might pose a problem for an abortion decision. If the Court struck down the death penalty and at the same time allowed abortion (which they had not yet decided to put over), the public reaction would be awful. The Court would be portrayed as allowing convicted killers to live, and sentencing unborn babies to die.
The argument left Blackmun in visible pain. He had another problem too, and he directed it to White. If they struck down the laws in these states, there would be an ensuing rush to pass mandatory death sentence legislation. That would be a tragic irony. Most death penalty laws had originally been mandatory. Jury discretion was an enlightened innovation; it w
as more humane to consider indi
vidual circumstances. It would be a shame to throw penology back into the Middle Ages. He had thought the death penalty question was something for legislatures to decide. Now he feared what they would do.
Rehnquist also shared his concerns with White. The Court had no business reviewing any of these state laws unless there were allegations of racial discrimination. He acknowledged that human error might result in some men being sentenced to death for no particularly good reason, perhaps even for an absolutely bad one. But the human error of wrongfully depriving a man of his constitutional rights was less severe than mistakenly striking down an otherwise constitutional statute. For the Court to thwart the will of a state legislature was, in Rehnquist's view, to violate the rights of every individual in that state. That was a far greater wrong than allowing one man to die.
Burger was deeply disappointed in both Stewart's and White's opinions for still another reason. Burger made the point in his dissent; he noted that Stewart and White would seem to have no objection to the death penalty if the "rate of imposition is somehow multiplied....
"It seemingly follows that the flexible sentencing system created by the legislatures, and carried out by juries and judges, has yielded more mercy than the Eighth Amendment can stand. The implications of the approach are mildly ironical."
But Burger agreed with Stewart's assessment of the decision's impact. "There will never be another execution in this country," he predicted privately.
Powell was disappointed. He had come so close, he believed, to getting the majority. He was also surprised and distressed to find the legal reasoning in the opinions of Stewart and White so shoddy. Clearly, they had switched their positions since the
McGautha
case the previous year. They were simply unwilling to say so.
As soon as the typewritten copies of the White and Stewart drafts were circulated, Douglas's clerk called his boss in Goose Prairie. Douglas also immediately caught the inconsistency with
McGautha.
He wanted to add a footnote to his own opinion laying into Stewart and White for not facing this squarely. His tone was severe, and he was not about to be dissuaded from attacking his two new allies. He was sure the footnote would not destroy the coalition.
After several days, copies of the two opinions had still not arrived in Goose Prairie, and Douglas called to berate his clerks. Somehow, he held them responsible for the slow mail. He did not want to listen to any excuses. He would deal directly with Brennan. Douglas spoke to Brennan by phone on Thursday, June
15.
They agreed that Brennan should draft a short
per curiam,
summarizing the result that the majority had reached in their separate opinions. Douglas insisted that the
per curiam
include the lineup of who had voted on either side, so that the result would not be lost in the welter of opinions. He also told Brennan about the footnote he intended to write and asked that announcement of the case be postponed at least until Monday, June
26,
so that the footnote could be inserted in his opinion.
Brennan tried gently to dissuade him. The coalition was not necessarily solid.
Douglas would not move.
The footnote soon followed. It was, as Brennan had feared, uncompromising. "The tension between our decision today and
McGautha
highlights, in my view, the correctness of Mr. Justice Brennan's dissent in that case, which I joined." Douglas then pointed out the similarity between Stewart's and White's opinions and Brennan's
McGautha
dissent.
Much to Brennan's relief, Stewart and White ignored the attack.
With all the votes and opinions in, Burger wanted to clarify the choices that were now available to the states. The majority, he wrote as a final addition to his opinion, had not ruled all death penalty laws unconstitutional. Mandatory or automatic sentences were still probably constitutional. State legislatures had "the opportunity, and indeed the unavoidable responsibility," to consider these alternatives.
On the morning of June
29,
the last day of the term, the
5
-to
-4
decision was announced.