Carol S. Steiker and Jordan M. Steiker: Courting Death: The Supreme Court and Capital Punishment

AuthorJon Yorke
Publication Date01 Sep 2017
DOIhttp://doi.org/10.1111/jols.12039
COU RTI NG DE AT H: TH E SUP REM E COU RT AN D CAP ITA L
PUNISHMENT by CAROL S. STEIKER AND JORDAN M. STEIKER
(Cambridge MA: Belknap Press of Harvard University Press, 2016, 390 pp.,
£23.95)
This important book by sister and brother authors, Carol and Jordan Steiker,
provides an illuminating investigation into the precarious tapestry that is the
Supreme Court of the United States' jurisprudence on the death penalty. The
authors tell a constitutional story, drawing on their own experiences as law
clerks for Justice Thurgood Marshall in the Supreme Court (Carol 1987±
1988 and Jordan 1989±1990), and as leading professors and scholars on the
death penalty. They use intricate forensic jurisprudential techniques to
identify an enduring doctrinal principle that they argue will ultimately be
used by the Supreme Court to provide for national abolition. In significant
ways, this publication comes at a portentous moment. Even as the ink was
drying, Donald Trump was sworn in as the 45th President of the United
States of America, and the Republican nominee, Judge Neil Gorsuch, was
confirmed as a Justice of the Supreme Court. These two changes to the
highest executive and judicial branches of United States government will
have significant implications for the future of the nation's capital judicial
process. Therefore, for abolitionists, the timeliness of this publication cannot
be overstated.
Courting Death has nine chapters: the first five delineate a histo-
geography of constitutional regulation and six to nine outline a focused
contemporary deconstruction. The authors set out the development of the
jurisprudence on the Eighth Amendment's cruel and unusual punishment
clause and demonstrate a clear failure in the federal architecture to effec-
tively promote adequate comity review by the states, circuits, and the
Supreme Court. Throughout the text the reader is treated to the pearls of
wisdom from the very heart of the Supreme Court,
1
and the intricate
litigation strategies deployed for state and federal attack by the National
Association for the Advancement of Colored People (NAACP) through the
Legal Defense Fund (LDF). This is set out in the 1972 litigation in Furman
v. Georgia
2
and the attainment of the suspension of the death penalty
through a weak plurality judgment, and then the battle lost in the reinstate-
ment of the punishment in 1976 in Gregg v. Georgia.
3
The shift from
Furman to Gregg was the early result of the experimentation of the `states as
463
1 On the death penalty issues, Courting Death is read as a contemporary supplement to
the preceding in-depth behind-the-scenes account of the Supreme Court in B.
Woodward and S. Armstrong, The Brethren: Inside the Supreme Court (2005) and E.
Lazarus, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court
(2005).
2Furman v. Georgia, 408 U.S. 238 (1972).
3Gregg v. Georgia, 428 U.S. 153 (1976).
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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