This article arrives at the surprising conclusion that a meaningful Eighth Amendment death penalty jurisprudence lives on, that it is a quite intelligible jurisprudence, and that it is driven by a coherent methodology with firm roots in the traditions of constitutional adjudication.
To reach that conclusion, it is helpful first to have some sense of what the Supreme Court has been doing in the death penalty area lately. Part I thus presents a topical review of the Court’s recent work, identifying the themes that now dominate, pointing out the concerns those themes raise, and asking whether any sense can be made of the Court’s ventures. Part II takes up that question, and concludes that a common, well-recognized constitutional methodology accounts for the Court’s Eighth Amendment decisions. The Justices concede that the amendment contains significant normative content against which to assess the legitimacy of capital punishment, and they agree that the federal judiciary bears an important responsibility to see that the amendment’s norms are enforced. But in discharging that obligation, the Court uses federal judicial power sparingly in order to accommodate considerations of governmental structure, institutional capacity, and institutional responsibility. These concerns, too, carry constitutional credentials; to give them their due weight, the Justices – in a word – balance.