Disorder in the Court: The Death Penalty and the Constitution

This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices’ successive approaches to the death penalty by retelling the story of the Court’s capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, the judge must try to demonstrate its falsity in the very process of constitutional adjudication. I intend to pursue this second purpose in this article by direct argumentation, but even more by force of the example provided by the course and the failures of the Court’s capital punishment jurisprudence.