Perhaps the element of our criminal justice system to which Justice Marshall most committed himself was the death penalty. Throughout his tenure on the Court, Justice Marshall vigorously adhered to his view that the death penalty, in all cases, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Yet, it is dear the Court had rejected this view in 1976 when it upheld certain capital punishment statutes against constitutional attack.(1)
How could a Justice whose legacy is rooted in his commitment to the use of legal processes to pursue social change and his corresponding dedication to the rule of law simply reject the Court's precedent on this issue? How can any Justice as committed to a substantive vision of justice as Thurgood Marshall ever remain faithful to the rule of law? Indeed, the pursuit of a substantive result in judicial decisionmaking is often viewed as antithetical to a devotion to the rule of law, at least when the result sought is inconsistent with the general direction of a majority of the Court. The rule of law, if viewed primarily as requiring adherence to precedent, would necessitate acceptance and application of the Court's death penalty jurisprudence, even by a Justice who disagreed with it.
A different conception of the notion of the rule of law, however, views the ideal as embodying principles beyond the procedural requirement of adherence to precedent. Under this view, the rule of law as an ideal exists to curb arbitrary assertions of governmental power and to ensure equal application of the laws; that is, the rule of law is not distinct from, but rather is predicated upon, a notion of substantive justice.(2) Although stare decisis is arguably an important vehicle in the achievement of these principles, if it is applied without regard to a ruling's practical effect, the result may be to conceal discrimination and arbitrariness, rather than avoid such treatment. Through his ability to point out the gap between the Court's abstract legal rulings and the effect these rulings have on the lives of real people, Marshall succeeded in remaining faithful to the principles which form the basis of the rule of law as well as to his vision of substantive justice.(3)
This conception of the rule of law is reflected in Justice Marshall's view of stare decisis. For Marshall, the doctrine of stare decisis "is not `an imprisonment of reason.'"(4) Rather, "reason," in contrast to "power," may provide a basis for overruling constitutional decisions.(5) By requiring special circumstances to overrule constitutional decisions, Marshall sought to ensure that decisions to overrule not be grounded in the mere proclivities of individuals.
The area of capital punishment is especially illuminating of this aspect of Marshall's judicial method because the Court's legal rulings in this area are very much dependent upon the de facto implementation of these rulings. Thus, Marshall was able to pursue his substantive vision of justice, yet remain faithful to the rule of law, by continually pointing out the states, failures in implementing the Court's rulings.(6)
Three aspects of the Court's death penalty jurisprudence disturbed Marshall. First, when the Court in 1976 affirmed that the death penalty could be administered in a constitutional manner, it required certain safeguards to ensure that the penalty is not arbitrarily and capriciously imposed.(7) Subsequent decisions demonstrated, in Marshall's view, that the Court did not always mean what it said in 1976. Second, while the Court continued to restrict what federal courts could remedy on post-conviction review, it also narrowly defined unconstitutional ineffective assistance of counsel at trial. This resulted in substantial constitutional claims by capital defendants going unheard. Third, Marshall found most "perverse"(8) the Court's willingness to endorse the expedition of capital proceedings. Such expedition resulted in capital defendants receiving less time to present their cases to the courts than noncapital defendants. …