Mortal combat: how the death penalty polarized the Supreme Court.

• Author: Lazarus, Edward
• Position: 1985-86; excerpt of book, 'Closed Chambers' - Cover Story

In September 1985 the conflict within the Supreme Court over the death penalty came to a head with the case of Willie Jasper Darden. Darden was a black man who bad been convicted in a Florida court 12 years earlier of killing a white man during a furniture store robbery, then making sexual advances on the victim's wife and wounding a neighbor who stumbled on the crime. After a Florida state court affirmed Darden's conviction and sentence, his case was appealed on constitutional grounds, and it was again affirmed. Florida set Darden's execution for Sept. 4, 1985 -- well before his deadline for filing the certiorari (cert.) petition that was necessary to grant a full Supreme Court review of the case. Naturally, he applied for a stay of execution to allow him to present his claims, and that application reached the Supreme Court on Sept. 3.

Justices William Brennan and Thurgood Marshall, of course, immediately voted to grant Darden a stay. And Harry Blackmun and John Paul Stevens joined them. Both Blackmun and Stevens believed that every capital defendant deserved one complete round of federal habeas review (an appeal on constitutional grounds). Brennan and Marshall did not pretend that their abolitionist position on the death penalty could be be squared with the court's precedents. Instead, they declared themselves excused from following stare decisis -- the principle of acceding to past decisions, especially ones that the court repeatedly reaffirmed. According to Brennan and Marshall, the court was so fundamentally wrong in its interpretation of the Eighth Amendment [which prohibits cruel and unusual punishment] that they were bound "by a larger constitutional duty ... to expose the departure and point towards a different path."

Whatever the duds justification, the acid stream of abolitionist dissents ensured that the issue of capital punishment continually ate away at the connective tissue of the court community. After Gregg [the 1975 case in which the court reauthorized capital punishment] the court handed down a number of decisions further restricting the death penalty. But every success for Brennan's and Marshall's short-term goal of stalling executions only made an eventual backlash more certain.

By a few minutes after 6:00 p.m., all the votes were in, and Darden's stay application had failed by a now familiar 5-4. On hearing this news, with less than 12 hours before the execution, Darden's lawyers scrambled to think of some strategy to save their client. They knew that they had garnered four votes for a stay. They also knew that two years before, in another capital case where the court had denied a stay 5-4, the conservative majority had promised that if only the applicant had "convinced four Members of the court that certiorari would be granted ... a stay would be issued'

The crux of the problem was that while Justices Warren Burger, Byron White, Lewis Powell, William Rehnquist, and Sandra Day O'Connor could prevent the court from issuing stays of execution, they could not prevent the remaining minority from making two other kinds of decisions central to the consideration of capital cases.

First, under the court's rules, a minority of four justices was sufficient to grant certiorari and force the court to conduct a full review of a case. Second, a mere three Justices could place a "hold" on any cert. petition that they considered related to a case already pending. The hold rule was meant to ensure that the parties to every case still in the judicial pipeline would receive the benefit of whatever changes in the law the court might make in its upcoming decision.

The court's minority-based rules were predicated on a level of trust and consideration among the justices -- the idea that, in certain matters, simply out of respect for one another's judgments, the entire court would allow itself to be bound by a minority of its members.

Given the Burger court's close division between liberals and conservatives in the capital cases and the growing rancor on both sides, it was only a matter of time before the minority-based cert. and hold rules came into direct conflict with the majority rule governing stays. In capital cases, uniquely, a vote to grant cert. or to hold a case was not necessarily self-sufficient. When a capital defendant came to the court with an execution date already set, a cert. grant or a hold vote wouldn't be effective unless the court also issued the defendant a stay of execution. In the absence of a stay (requiring five votes), the defendant would be dead before the court took final action on his case.

The asymmetry in procedures meant that in death cases in which an execution was set, the conservatives held an effective veto whenever the liberals voted to grant cert. or hold: They could simply refuse consent for a stay. It was thus only a matter of time before the question arose whether, in the recrimination-filled context of capital stays, the conservatives would continue to honor the court's nonmajoritarian traditions.

Conservatives were fed up with Brennan and Marshall behaving like abolitionist agents in judicial garb. Their two automatic votes to grant or to stay or to vacate in every capital case mocked the court's precedents and skewed the balance between its majority and nonmajority rules. From the conservative perspective, the liberals, including Blackmun and Stevens, were manipulating the cert. rule and the hold rule to delay legal executions. First, the liberals would grant cert. in what the conservatives saw as cases clearly unworthy of the court's attention. These internal maneuvers worked hand in glove with the abolitionists on the outside. Trying to take advantage of the three-vote hold rule was a favorite tactic of the death penalty defense bar. As soon as the court granted cert. in a capital case, the NAACPs Legal Defense Fund or some other group would be arguing in every cert. petition that their clients' cases were related and should be held until the court issued its ruling -- and, of course, that stays of execution should be meted out accordingly. In light of these tactics, the conservatives felt perfectly justified in exercising whatever power they could to keep executions on track.

From the liberals' perspective, the conservatives were now willing to subvert even the court's own processes to keep the "Old Sparkys" of the South in business. For justices uneasy about, if not unalterably opposed to state-sponsored killing, that was an insult touched with evil. The whole point of making the cert. and hold rules nonmajoritarian was to give a minority of justices the power to prevent a majority from denying a cert. petition. Surely the majority should not be allowed to defeat those rules by withholding a stay and waiting for the petitioner's execution to moot his appeal.

What was really going on here, the more liberal justices...