In the last several weeks the Supreme Court has dealt progressives a set of severe and crippling blows. Its recently announced decisions have been major setbacks for social movements dedicated to limiting gun rights, preserving women’s rights, and expanding environmental protection. Each of those movements now will have to recalibrate strategy and adjust to the reality of an emboldened, conservative activist court.
But sometimes judicial defeat—even those with extraordinary costs—can be turned into political gains. Looking at the recent experience of the movement to abolish the death penalty may offer an instruction on how other movements might be able to move forward.
2022 is not the first or only time in recent history that the court has disappointed progressives. In fact, this year marks the 35th anniversary of a Supreme Court decision that delivered a grave blow to activists seeking to permanently end America’s death penalty.
In April, 1987 the court handed down a 5-4 ruling in a case called McCleskey v. Kemp. This decision severely curtailed the kinds of evidence that abolitionists could use to prove that capital punishment was being administered in a racially discriminatory manner.
Warren McCleskey, who ultimately was put to death in 1991 after an extended legal battle, was, as the New York Times put it, “no saint or hero. He was a robber, part of a gang that shot and killed an off-duty police officer during as hold up.”
The fact that McCleskey was a Black man and the person that he shot during that 1978 robbery of a furniture store was white set up the legal challenge that would ultimately makes its way to the Supreme Court.
His case became the vehicle for the NAACP’s Legal Defense Fund, which was then leading the attack on capital punishment, to try to convince the Supreme Court that the death penalty was administered in a racially discriminatory way that made it unconstitutional. The LDF wanted the court to declare that it violated both the Eighth Amendment’s ban on cruel and unusual punishment and the 14th Amendment’s guarantee of equal protection under the law.
Crucial to their effort were the results of an unusually sophisticated empirical research project on all Georgia murder cases decided during the period 1973 to 1979. It was carried out by law professor David Baldus and his colleagues.
Among its key findings was that, taking into account all other factors that might explain death sentences, there was still a powerful race of the victim effect. People who murdered white victims were 4.3 times more likely to get a death sentence than those who killed Black victims regardless of their race.
In a remarkable decision, the court accepted the validity of the Baldus study, but found no constitutional problem with the Georgia death sentencing system.
Justice Lewis Powell, who wrote the majority opinion, said that McCleskey had not proven that there was discrimination in his case. Powell even acknowledged that in this country there is always “some risk of racial prejudice influencing a jury’s decision in a criminal case” but said that America would have to live with that risk.
He said that the Constitution did not require “‘perfect procedure’” even in death cases and worried that if the court found for McCleskey that it would open a floodgate of limitless litigation seeking to root out racial discrimination in other parts of the criminal justice system.
“Confronted with powerful evidence that racial feelings play a large part in determining who will live and who will die,” New York Times columnist Anthony Lewis wrote at the time the decision was handed down, “the Court chose to close its eyes. It effectively condoned the expression of racism.”
Justice Powell himself came to regret his role in McCleskey. He told his biographer four years after he retired from the bench, that if he could go back in time he would change his vote in only one case, “McCleskey v Kemp.”
Moreover, McCleskey shut the door on abolitionists’ long held hope of achieving judicial abolition of capital punishment. It seemed to be a genuinely apocalyptic moment. Hugo Adam Bedau, then one of America’s leading abolitionists, predicted that “Someday McCleskey will be the death penalty’s Dred Scott.”
The decision itself, though, forced people seeking to end capital punishment to change their approach. Abolitionists virtually gave up their goal of using litigation to convince the Supreme Court to declare the death penalty unconstitutional.
In his McCleskey opinion, Powell urged abolitionists to pursue their goals through the legislative process.
And in the ensuing decades, while they have continued to litigate and while the court sometimes has rendered decisions reforming this or that aspect of the death penalty, abolitionists have mostly followed Powell’s advice. They have redirected their primary energies from the legal to the political arena. They have broadened their strategy to focus on the death penalty’s high costs and the risks of executing the innocent, as well as racism in death sentences and executions.
In McCleskey’s aftermath they have mounted state-by-state political campaigns to convince governors and legislators to end the death penalty one jurisdiction at a time.
There is ample evidence that while racial discrimination continues to plague America’s death penalty system, this change from a predominantly legal to a political strategy has paid great dividends in altering the national conversation about capital punishment and putting this country on the road to abolition.
Today, politicians, including some Republicans, who once would have been terrified to oppose capital punishment now openly do so. They have been persuaded by abolitionist arguments and by their skillful, if incremental, political work.
Since 2007, 10 states have abolished the death penalty, including Virginia the first southern state to do so. That number is greater than in any other comparable 15-year period in American history.
Governors in California, Oregon and Pennsylvania have also imposed moratoriums on executions. And, in a few death penalty states, legislatures have passed or are now considering Racial Justice Acts that allow statistical evidence of racial discrimination, like the Baldus study, to be admitted in courts in their states.
It is too early to say whether all of this will result in the end of the death penalty in the United States. Political success is not guaranteed. And setbacks like former President Donald Trump’s 2020-21 execution spree and Oklahoma’s recent announcement that it intends to execute 25 people in 29 months suggest that the path forward for abolitionists will not be a smooth one.
But it is not too early to say that arguments of the kind that the Supreme Court rejected have gained traction across this country and put this country on a path where abolition of the death penalty is now conceivable if not yet foreseeable.
Perhaps the recent defeats in the Supreme Court will lead progressive groups that have long relied on courts, or believed that courts would respect rights or policies that they had previously secured, now to follow the example of death penalty abolitionists.
They will have no option but to turn, or return, to politics, work at the state and local level, reframe arguments, and take the long view. Doing so may offer not just a new strategy, but hope