Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall

From 1976, when the United States Supreme Court upheld the constitutionality of the death penalty in Gregg v. Georgia, until their retirements in the early 1990s, Justices William Brennan and Thurgood Marshall doggedly voted against capital punishment in over 2,500 cases. The Justices typically began their opinions by reiterating they were adhering to their views that "the death penalty is in all cases cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments." While most of the dissents upheld without elaboration their conviction that capital punishment was unconstitutional, some explained in detail why, even assuming the death penalty might be constitutional, its application in the case before the Court was not.
In this well-researched and copiously documented work, Michael Mello provides a comprehensive analysis of the legal, historical, and philosophical underpinnings of the Justices' relentless dissents against capital punishment. Mello begins with biographical sketches of Brennan and Marshall, examining how two men from divergent legal backgrounds came to share an unswerving stance against the death penalty. He then considers the historical, theoretical, and jurisprudential legitimacy of Supreme Court dissents in general, and sustained dissents in particular.