As a conservative majority of the Supreme Court roguishly departs from nearly 50 years of precedent by reversing two landmark decisions that affirmed a woman’s right to choose, it’s worth commemorating a time 50 years ago when the court’s actions, while still deeply imperfect, were more consistent with its purported conviction to the sanctity of life.
In 1972, a year before Roe v. Wade was decided, the Legal Defense Fund secured the first and only moratorium on the imposition of the death penalty in the history of the United States in Furman v. Georgia. For five years following the decision, no person was put to death by any state or federal agency. More than 600 death sentences were vacated, sparing just as many lives.
The reason for the cessation of a practice that was, at the time, an accepted form of punishment across the globe for the most egregious transgressions, was that it violated key provisions of the U.S. Constitution. Specifically, the arbitrary and discriminatory manner in which the death penalty was imposed against people of color, especially Black defendants, and poor persons constituted “cruel and unusual punishment” under the Eighth Amendment and violated the due process clause of the 14th Amendment.
The court’s one-page per curium order was followed by five separate concurring opinions and four separate dissents—totaling more than 200 pages altogether. Justice William Brennan, Jr. and Justice Thurgood Marshall, LDF’s founder and the first Black associate justice of the Supreme Court, favored abolition. The other three justices in the majority made clear that they would preserve the possibility of reinstating the death penalty—if states implemented reforms to ensure that it was limited, nondiscriminatory, and not employed in an arbitrary manner.
Differences about the possible acceptability of capital punishment aside, the Furman decision was commendable: a majority of an ideologically diverse court had agreed on taking action that actually recognized the sanctity of life.
What came next, however, should remind us that when it concerns the right to bodily autonomy and the guarantees of the U.S. Constitution, “returning the issue to the states” is not only an abdication of judicial responsibility, it is morally bankrupt. In 1976, a reconstituted Supreme Court reinstated the death penalty in Gregg v. Georgia, on the theory that newly revised state statutes would eradicate the discriminatory and arbitrary use of state-sanctioned killing. Many states failed to keep this promise. Indeed, since 1973, nearly 200 people who had been sentenced to death were wrongly convicted and have since been exonerated; 54 percent of those exonerees are Black people.
Fast forward 50 years and the court’s hypocrisy is starker than ever. Although the United States’ sadistic use of state-sanctioned killing already renders it an outlier among western nations, a majority of this court, in the Dobbs opinion, has now gone further, brushing aside the fundamental tenet of judicial restraint in order to remove bodily autonomy from another group of persons. It has done so despite the certainty that some of those persons, disproportionately Black, Brown, or low-income, will die—or suffer great physical, emotional, or economic injury—as a result of its decision.
The court’s alleged respect for life, though, cannot be reconciled with its patent disregard for death at the will of the state. And through such cruel indifference, this majority adds the credibility of the court itself to its list of victims.
LDF continues to fight for the abolition of the death penalty, as it advocates for the reproductive autonomy of all persons. We do this, in part, because both quests reflect an institutional reverence for the life, freedom, and self-determination of people in this country to live free of discrimination and bias. Fifty years ago, the Supreme Court provided a fleeting example of a similar commitment. In this dark moment in which the court increasingly appears captured, let us remember how close we came to ending capital punishment in Furman and work towards a world where our courts, especially the Supreme Court, truly value the lives of all people.
