THE SUPREME COURT'S JUSTICES: Deeply Divided On The Death Penalty, But Still Completely Civil With Each Other?

By EDWARD LAZARUS

Tuesday, Aug. 21, 2001

Last week's headlines from the Supreme Court left my head spinning. As was widely reported, the Court — by a 3-3 tie vote — refused to stop Texas' imminent execution of Napoleon Beazley.

Beazley had been convicted of killing the father of Michael Luttig, a judge on the U.S. Court of Appeals for the Fourth Circuit. Only six Justices participated in the decision; Justices Antonin Scalia, David Souter, and Clarence Thomas recused themselves since they have personal relationships with Judge Luttig.

Justice Stephen Breyer was one of the three justices who voted unsuccessfully to stay Beazley's execution. Almost simultaneously with the Court's handing down its split decision, Breyer gave a speech in which he assured the public that civility and collegiality still reign supreme at the Court. Indeed, Breyer commented that during his entire tenure, he could not remember a single instance in which one justice had raised his or her voice to another.

Something is wrong with this picture. The Justices are so divided over the death penalty (among so many issues) that, by an equally divided vote, they let Texas carry out a highly controversial execution. In light of this schism, can it really be true that no justice on either side would think the slightest ill thought about a colleague? If so, we ought to be worried about the depth of conviction of the Justices. And, if not, why the Breyer charade?

The Justices in Conflict

A look at the history of tie votes and executions at the high court confirms that if Breyer's claim of collegiality — even in the face of litigants' deaths — is true now, it has not always been so.

In January 1985, the Court permitted Georgia to electrocute Roosevelt Green after his stay application failed by a 4-4 vote. Justices William Brennan, Thurgood Marshall, Harry Blackmun, and John Paul Stevens voted in favor of a stay; Chief Justice Warren Burger and Justices Byron White, William Rehnquist, and Sandra Day O'Connor voted against.

In his petition to the Court, Green argued that his prosecution and sentencing was the product of race discrimination in Georgia's system of capital punishment. Almost every Georgia execution had already been put on hold as a federal appellate court addressed this issue. Green's case, however, had slipped through the cracks.

At the Supreme Court, the conservative and liberal justices — who had been engaged in a long see-saw battle over the constitutionality of the death penalty — split down the middle over whether to give Green a reprieve, while the courts decided the legality of Georgia's death penalty regime. Ordinarily, Justice Lewis Powell provided the swing vote in such cases. But when Green's petition came to the Court, Powell was incapacitated — having almost died during prostate surgery a few weeks before.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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