The Burger Court (1969–86)

Criminal Law and Procedure

How did the Burger Court rule on the constitutionality of the death penalty?

The Burger Court first ruled 5–4 in Furman v. Georgia (1972) that capital punishment was unconstitutional. The five justices in the majority joined in a one-paragraph, per curiam opinion. (A per curiam opinion is an opinion not signed by a particular justice but one that speaks for multiple justices.) All nine justices wrote separately, making the decision one of the longest in Supreme Court history. The Furman decision effectively ended capital punishment in America for more than four years.

The one-paragraph per curiam opinion stated: “The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Justices William Douglas, William Brennan, and Thurgood Marshall broadly attacked the death penalty. Justice Douglas wrote that the states’ death penalty laws were “pregnant with discrimination.” Justices Brennan and Marshall reasoned that capital punishment inherently constituted cruel and unusual punishment. Brennan wrote that the death penalty was “condemned as fatally offensive to human dignity,” while Marshall said it was “morally unacceptable.”

Justices Potter Stewart and Byron White wrote narrower opinions, focusing on the fact that the state laws in question did not provide sufficient guidance to jurors in capital sentencing to determine who should live and who should die. Stewart captured this sentiment in oft-quoted language: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.”

Four justices dissented, including Chief Justice Warren Burger, who noted the long history of capital punishment: “In the 181 years since the enactment of the Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt on the constitutionality of capital punishment.” Justice Harry Blackmun, who in 1994 reversed his position on the issue, emphasized that the imposition of the death penalty was a legislative, not a judicial, decision. According to Blackmun, state legislators—not federal judges—should decide whether a state has the ultimate punishment. Justice Lewis Powell noted how the Court’s dissent broke with longstanding precedent: “Today’s departure from established precedent invalidates a staggering number of state and federal laws. The capital punishment laws of no less than 39 States and the District of Columbia are nullified.” Justice William Rehnquist wrote in his dissent that the Supreme Court should exercise restraint and show deference to state legislators in this contentious area. He wrote that the majority decision “expand[ed] judicial authority beyond the limits contemplated by the Framers.”


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