Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall
Dublin Core
Title
Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall
Subject
Legal reform
Capital punishment
Supreme Court
Description
Review of Mello's piece discusses what the appropriate reaction of a judge should be to a law they believe to be unjust (specifically concerning capital punishment).
Creator
Mello, Michael
Source
Bentele, Ursula. Review of "Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall," by Michael Mello. New York Law Journal (August 1996).
Publisher
HIST 298, University of Mary Washington
Date
1996-08-09
Rights
The materials in this online collection are held by Special Collections, Simpson Library, University of Mary Washington and are available for educational use. For this purpose only, you may reproduce materials without prior permission on the condition that you provide attribution of the source.
Format
1 JPG
300 DPI
Language
English
Text Item Type Metadata
Text
[heading] The Lawyer’s Bookshelf
[subheading] Reviewed by Ursula Bentele
[handwritten text] New York Law Journal (8/9/96)
[title] Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall
[author] By Michael Mello.
[publishing information] Northeastern University Press, Boston, Mass. 331 pages. $45.
[article start] Against the Death Penalty by Michael Mellow addresses a fascinating topic in its most compelling context. The question of what is the appropriate reaction of a judge to what he or she perceives to be an unjust law has plagued philosophers and jurists for centuries. When that law can result, as it now can even in New York, in putting a human being to death, the issue takes on additional urgency and drama. [end paragraph]
[start paragraph] In a recent program at the Association of the Bar of the City of New York discussing this topic, speakers disagreed sharply about the “right” response of a judge, opposed to capital punishment, who is faced with the prospect of participating in a criminal justice system that carries out executions. On the trial level, might the judge be duty-bound to volunteer for capital cases, so as to ensure that the defendant will secure the most favorable possible rulings and instructions, or should the judge request that such cases not be assigned to her? Should the judge on an appellate court use all his persuasive powers to reduce the number of death sentences affirmed, while dissenting in all cases in which the majority disagrees, or, at some point, must the judge resign as a matter of conscience? [end paragraph]
[start paragraph] Justice Robert Utter, a highly respected member of the Washington Supreme Court who had dissented in every case in which a death sentence was affirmed, finally resigned last year, announcing that “I can no longer participate in a legal system that intentionally takes human life in capital punishment cases.” He said his decision was prompted in part by similarities he observed in his own moral struggles with those reported in Ingo Muller’s Hitler’s Justice: The Courts of the Third Reich. [end paragraph]
[start paragraph] Whether this analogy, or similar ones referring to the judges who upheld the apartheid laws in South Africa, is entirely appropriate to the situation of anti-death penalty judges operating within the American system of justice may be debated. Nonetheless, a book with the title Michael Mello gave to his book would, I had hoped, discuss in some considerable depth and from a wide perspective the different responses to cases in which current law and personal morality conflict. While the book does not touch on some of these issues, to my disappointment it does so only briefly and in a limited fashion. [end paragraph]
[start paragraph] Like Michael Mello, I have represented scores of death row inmates. As counsel for those facing execution, I always appreciated the presence of Justices William J. Brennan and Thurgood Marshall on the U.S. Supreme Court in these cases, not simply for their inevitable votes against death, but for their eloquent voices in dissent. Yet at times a sense of disquiet tugged at my subconsciousness. Would I be so sure that they were acting appropriately if I happened to disagree with their position? [end paragraph]
[start paragraph] Indeed, when Justice Antonin Scalia announced his intention no longer to follow the precedents, set by the Court in Woodson v. North Carolina and Lockett v. Ohio, requiring individualized consideration of all defendants charged with capital crimes, didn’t I think (as I would imagine Mr. Mello thought) that Justice Scalia acted improperly? After all, “relentless dissents” on both sides amount to stubborn refusal to abide by the well-established precedents of the highest court in the land. (Justice Scalia might even have the better of the positions, as he claimed that it was logically impossible for him to follow the Woodson-Lockett line of cases while at the same time remaining true to the Court’s insistence in other cases that the death penalty must be applied in a consistent, evenhanded fashion.) [end paragraph]
[start paragraph] Mr. Mello’s book does present considerable background information relevant to the two Justices’ persistent voices against the death penalty. He begins with biographies of the two men, emphasizing particularly Justice Marshall’s long and passionate efforts on behalf of black Americans. He then chronicles the evolving practices of the Supreme Court in rendering its opinions, from Justice John Marshall’s focus on achieving unanimity whenever possible so as to enhance the Court’s credibility as an institution, through the “companions in dissent,” Oliver Wendell Holmes and Louis D. Brandeis, to the modern era in which individual voices predominate over concern for the Court as an entity. [end paragraph]
[start paragraph] Mello describes some of the most famous dissents in the Court’s history: Justice Benjamin Curtis dissenting from Dred Scott v. Sandford, the first Justice John Marshall Harlan delivering the lone dissent in Plessy v. Ferguson and dissenting along with Holmes and Brandeis from the Court’s decision in Lochner v. New York, the Holmes and Brandeis dissents from the Court’s incursions on the First Amendment, and similar dissents by Justices Hugo L. Black and William O. Douglas. From these examples, where once dissenting opinions ultimately persuaded the Court that its initial decision was wrong, Mello draws the conclusion that dissents have indeed been justified by history. [end paragraph]
[start paragraph] Mello then surveys how various jurisprudential theories would deal with sustained dissents. Mello acknowledges that this discussion is only preliminary and limited in scope, but it does provide a basic framework for looking at the issue. At the extremes, the legal positivists would disapprove of such dissents as examples of failure to abide by the rule of law, while modern adherents to natural law would see Brennan and Marshall as abiding by a higher law, a position particularly justified when it serves to guarantee individual rights. The book does not explore what theoretical foundation actually might have influenced the Justices in their death penalty dissents beyond noting Justice Brennan’s partiality to modern natural law theory. Readers may find interesting Mello’s perception about how individual thinkers, including Herbert Wechsler, John Hart Ely and Jesse Choper, would assess these relentless dissents. [end paragraph]
[start paragraph] The final chapter in the book is titled “Legitimacy in Judicial Politics.” Here Mello, with the assistance of the recently released papers of Justice Marshall, provides several instances of opinions starting as dissents that either persuaded a majority or, in the form of dissents from denial of certiorari, signaled to counsel issues that might in the future command the four votes necessary to obtain review. This section fives the reader an interesting flimpse into the workings of Marshall’s chambers, as well as demonstrating that, at least in some cases, these dissenting views not only spared some lives but affected the course of capital pubishment jurisprudence. [end paragraph]
[start paragraph] Given the book’s important contribution, I consider it unfortunate that it includes gratuitous ad hominem attacks on Supreme Court Justices that are neither fully developed nor adequately supported. True, one would not expect a book dealing with the dissents of Brennan and Marshall to contain extensive critical assessments of the other members of the Court. It would therefore only have been improved, at least in this reviewer’s eyes, had it omitted such throwaway lines as “a cynical hack like Lewis Powell,” as well as a personalized diatribe against Clarence Thomas, “whose dismal performance as a Justice so far has already more than fulfilled by lowest and basest expectations . . . [who] does his speaking through groups of people plucked from the Rolodex of his best friend and through the brutal character of his judicial opinions . . ..” [end paragraph]
[start paragraph] Perhaps my assessment of this book was unduly colored by my own high expectations. The question of what honorable men and women should do when faced with laws that they regard as supremely unjust is timely and of the utmost importance. Mr. Mello has performed a valuable service in gathering a lot of material relevant to this critical and difficult issue. In light of his outstanding advocacy on behalf of capital defendants, he was well qualified to analyze why the particular relentless dissents of Justices Brennan and Marshall – dissents that essentially said “not in our names” when the state was determined to put one of its citizens to death – were different from other sustained dissents. By shortchanging this issue, Mr. Mello missed a valuable opportunity, at a time when no member of the Supreme Court adheres to this position, to provide thoughtful support for judges categorically opposed to the use of capital punishment in our country. [article end]
[reviewer information] Ursula Bentele is a professor at Brooklyn Law School.
[subheading] Reviewed by Ursula Bentele
[handwritten text] New York Law Journal (8/9/96)
[title] Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall
[author] By Michael Mello.
[publishing information] Northeastern University Press, Boston, Mass. 331 pages. $45.
[article start] Against the Death Penalty by Michael Mellow addresses a fascinating topic in its most compelling context. The question of what is the appropriate reaction of a judge to what he or she perceives to be an unjust law has plagued philosophers and jurists for centuries. When that law can result, as it now can even in New York, in putting a human being to death, the issue takes on additional urgency and drama. [end paragraph]
[start paragraph] In a recent program at the Association of the Bar of the City of New York discussing this topic, speakers disagreed sharply about the “right” response of a judge, opposed to capital punishment, who is faced with the prospect of participating in a criminal justice system that carries out executions. On the trial level, might the judge be duty-bound to volunteer for capital cases, so as to ensure that the defendant will secure the most favorable possible rulings and instructions, or should the judge request that such cases not be assigned to her? Should the judge on an appellate court use all his persuasive powers to reduce the number of death sentences affirmed, while dissenting in all cases in which the majority disagrees, or, at some point, must the judge resign as a matter of conscience? [end paragraph]
[start paragraph] Justice Robert Utter, a highly respected member of the Washington Supreme Court who had dissented in every case in which a death sentence was affirmed, finally resigned last year, announcing that “I can no longer participate in a legal system that intentionally takes human life in capital punishment cases.” He said his decision was prompted in part by similarities he observed in his own moral struggles with those reported in Ingo Muller’s Hitler’s Justice: The Courts of the Third Reich. [end paragraph]
[start paragraph] Whether this analogy, or similar ones referring to the judges who upheld the apartheid laws in South Africa, is entirely appropriate to the situation of anti-death penalty judges operating within the American system of justice may be debated. Nonetheless, a book with the title Michael Mello gave to his book would, I had hoped, discuss in some considerable depth and from a wide perspective the different responses to cases in which current law and personal morality conflict. While the book does not touch on some of these issues, to my disappointment it does so only briefly and in a limited fashion. [end paragraph]
[start paragraph] Like Michael Mello, I have represented scores of death row inmates. As counsel for those facing execution, I always appreciated the presence of Justices William J. Brennan and Thurgood Marshall on the U.S. Supreme Court in these cases, not simply for their inevitable votes against death, but for their eloquent voices in dissent. Yet at times a sense of disquiet tugged at my subconsciousness. Would I be so sure that they were acting appropriately if I happened to disagree with their position? [end paragraph]
[start paragraph] Indeed, when Justice Antonin Scalia announced his intention no longer to follow the precedents, set by the Court in Woodson v. North Carolina and Lockett v. Ohio, requiring individualized consideration of all defendants charged with capital crimes, didn’t I think (as I would imagine Mr. Mello thought) that Justice Scalia acted improperly? After all, “relentless dissents” on both sides amount to stubborn refusal to abide by the well-established precedents of the highest court in the land. (Justice Scalia might even have the better of the positions, as he claimed that it was logically impossible for him to follow the Woodson-Lockett line of cases while at the same time remaining true to the Court’s insistence in other cases that the death penalty must be applied in a consistent, evenhanded fashion.) [end paragraph]
[start paragraph] Mr. Mello’s book does present considerable background information relevant to the two Justices’ persistent voices against the death penalty. He begins with biographies of the two men, emphasizing particularly Justice Marshall’s long and passionate efforts on behalf of black Americans. He then chronicles the evolving practices of the Supreme Court in rendering its opinions, from Justice John Marshall’s focus on achieving unanimity whenever possible so as to enhance the Court’s credibility as an institution, through the “companions in dissent,” Oliver Wendell Holmes and Louis D. Brandeis, to the modern era in which individual voices predominate over concern for the Court as an entity. [end paragraph]
[start paragraph] Mello describes some of the most famous dissents in the Court’s history: Justice Benjamin Curtis dissenting from Dred Scott v. Sandford, the first Justice John Marshall Harlan delivering the lone dissent in Plessy v. Ferguson and dissenting along with Holmes and Brandeis from the Court’s decision in Lochner v. New York, the Holmes and Brandeis dissents from the Court’s incursions on the First Amendment, and similar dissents by Justices Hugo L. Black and William O. Douglas. From these examples, where once dissenting opinions ultimately persuaded the Court that its initial decision was wrong, Mello draws the conclusion that dissents have indeed been justified by history. [end paragraph]
[start paragraph] Mello then surveys how various jurisprudential theories would deal with sustained dissents. Mello acknowledges that this discussion is only preliminary and limited in scope, but it does provide a basic framework for looking at the issue. At the extremes, the legal positivists would disapprove of such dissents as examples of failure to abide by the rule of law, while modern adherents to natural law would see Brennan and Marshall as abiding by a higher law, a position particularly justified when it serves to guarantee individual rights. The book does not explore what theoretical foundation actually might have influenced the Justices in their death penalty dissents beyond noting Justice Brennan’s partiality to modern natural law theory. Readers may find interesting Mello’s perception about how individual thinkers, including Herbert Wechsler, John Hart Ely and Jesse Choper, would assess these relentless dissents. [end paragraph]
[start paragraph] The final chapter in the book is titled “Legitimacy in Judicial Politics.” Here Mello, with the assistance of the recently released papers of Justice Marshall, provides several instances of opinions starting as dissents that either persuaded a majority or, in the form of dissents from denial of certiorari, signaled to counsel issues that might in the future command the four votes necessary to obtain review. This section fives the reader an interesting flimpse into the workings of Marshall’s chambers, as well as demonstrating that, at least in some cases, these dissenting views not only spared some lives but affected the course of capital pubishment jurisprudence. [end paragraph]
[start paragraph] Given the book’s important contribution, I consider it unfortunate that it includes gratuitous ad hominem attacks on Supreme Court Justices that are neither fully developed nor adequately supported. True, one would not expect a book dealing with the dissents of Brennan and Marshall to contain extensive critical assessments of the other members of the Court. It would therefore only have been improved, at least in this reviewer’s eyes, had it omitted such throwaway lines as “a cynical hack like Lewis Powell,” as well as a personalized diatribe against Clarence Thomas, “whose dismal performance as a Justice so far has already more than fulfilled by lowest and basest expectations . . . [who] does his speaking through groups of people plucked from the Rolodex of his best friend and through the brutal character of his judicial opinions . . ..” [end paragraph]
[start paragraph] Perhaps my assessment of this book was unduly colored by my own high expectations. The question of what honorable men and women should do when faced with laws that they regard as supremely unjust is timely and of the utmost importance. Mr. Mello has performed a valuable service in gathering a lot of material relevant to this critical and difficult issue. In light of his outstanding advocacy on behalf of capital defendants, he was well qualified to analyze why the particular relentless dissents of Justices Brennan and Marshall – dissents that essentially said “not in our names” when the state was determined to put one of its citizens to death – were different from other sustained dissents. By shortchanging this issue, Mr. Mello missed a valuable opportunity, at a time when no member of the Supreme Court adheres to this position, to provide thoughtful support for judges categorically opposed to the use of capital punishment in our country. [article end]
[reviewer information] Ursula Bentele is a professor at Brooklyn Law School.
Original Format
Book
Contributor of the Digital Item
Berrier, Carson
Student Editor of the Digital Item
Dickinson, Terra
Files
Citation
Mello, Michael, “Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall,” HIST299, accessed July 4, 2024, http://hist299.umwhistory.org/items/show/268.