For the first time in a long time, the Supreme Court's most important death penalty decisions all have gone the defendant's way. Is the Court's newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court's ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even the Justices saw themselves as playing a heroic, countermajoritarian role in the case. But the lessons of Furman are not what they seem. Rather than proving the Supreme Court's ability to withstand majoritarian influences, Furman teaches the opposite-that even in its more countermajoritarian moments, the Court never strays far from dominant public opinion, tending instead to reflect the social and political movements of its time. This Article examines the historical context of Furman v. Georgia and its 1976 counterpart, Gregg v. Georgia, to showcase a fundamental flaw in the Supreme Court's role as protector of minority rights: its inherently limited inclination and ability to render countermajoritarian change. In theory, the Court protects unpopular minorities, but in practice it is unlikely to do so unless a substantial (and growing) segment of society supports that protection. Even then, Furman reminds us that the Court's "help" may do more harm than good. If the past truly is a prologue, Furman portends that the Court's current interest in scrutinizing the death penalty will not last forever. Like the fairweather friend, the Court's protection will likely be there in good times but gone when needed the most.
The past few years have seen a dramatic turn in the jurisprudence of death. After two decades of "deregulating" the death penalty,1 the Supreme Court is once again closely scrutinizing the administration of capital punishment in the United States. Since 2002 alone, the Court has categorically exempted mentally retarded and juvenile offenders from the death penalty,2 invalidated death eligibility determinations made by judges as opposed to juries,3 and insisted upon more than de minimis legal representation in capital cases.4 Each move is a major milestone.
By and large, commentators have applauded the Court's newfound willingness to protect capital defendants.5 Yet at a time of widespread public doubts about the death penalty and bipartisan support for death penalty reform,6 perhaps we should be only so impressed. Death penalty safeguards are popular now, but one day the worm will turn yet again. Politicians will stop advocating moratoriums and return to campaigning on the number of executions they presided over in their previous term.7 When support for reform wanes, will the Court still be inclined to closely scrutinize the imposition of death?
To some extent, we can expect the Supreme Court's death penalty jurisprudence to reflect prevailing sentiment because doctrine ostensibly demands it. The chief constitutional constraint on the death penalty is the Eighth Amendment's "cruel and unusual punishments" clause,8 which the Court has interpreted to turn on the nation's "evolving standards of decency."9 In practice, that means the Court will tend to look for and follow national trends when recognizing constitutional protection in this area as a matter of doctrinal design.10 But there must be more to it than that. Not all of the Court's recent restrictions on the death penalty have invoked the Eighth Amendment11 and besides, one need not know Eighth Amendment doctrine to question the Court's willingness to intervene in less hospitable times. Supreme Court Justices are a part of contemporary society, and thus naturally influenced by the same societal forces that shape the rest of the country's views. …