Powell and Rehnquist
As the October date set for oral argument of the death penalty cases approached, the Supreme Court received thick answering briefs from California, Georgia, and Texas. They relied heavily on the by-now-familiar position that abolition was up to the states. The framers of the Constitution, they argued, plainly did not intend to end the death penalty. Court decisions (most recently McGautha- Crampton) had not questioned its constitutionality. The states were given wide latitude in choosing criminal penalties; there was nothing foreign to American tradition in making death the price for serious crime. Evolving community standards did not make capital punishment unconstitutional. The evidence at most showed not a desire for abolition, but for limited retention. New York, for example, punished killing police officers with death. If the Court held that capital punishment was repugnant to civlized standards of conduct, limited retention to protect the police would be impossible.
The Texas brief in Branch raised a more controversial justification: that retribution was a legitimate end of criminal punishment. "The view is still widely held that for some particularly serious and offensive crimes no penalty short of