Between Bush v. Gore and Citizens United v. Federal Election Commission, the image of the Supreme Court as an apolitical body that deduces the law based on precedent has taken a hit over the past decade.
However, unlike the other two branches of the federal government, behind-the-scenes looks at how decisions are made in the judicial branch are relatively rare. The first crack in the wall came in 1979, with Bob Woodward and Scott Armstrong’s The Brethren: Inside the Supreme Court. While the authors asserted that five Justices who were active between 1969 and 1976 provided information, those individuals were not identified. But everything is on the record in attorney and academic Evan J. Mandery’s A Wild Justice: The Death and Resurrection of Capital Punishment in America (Norton, Aug.), the latest peek at how the law of the land is really made.
A Wild Justice is the story of two seminal Supreme Court cases— 1972’s Furman v. Georgia, which resulted in a de facto moratorium on executions, and 1976’s Gregg v. Georgia, in which the Court reversed its 1972 decision. The thrilling tale is told from several perspectives, including those of the principal attorneys, the Justices, and their law clerks. But that’s just the surface; in addition to offering thorough coverage of how the United States has gone back and forth regarding capital punishment, the book also serves as an excellent primer on how the Supreme Court functions.
The 1996 Defense of Marriage Act was recently declared unconstitutional, and there are a host of other hot-button issues on the horizon that might very well make it to the highest court in the land. So what better time to puncture the mystique surrounding the Court’s machinations?
A Wild Justice does just that in spades; as Mandery puts it, “[a]t its core it’s really a story of how a Supreme Court case is constructed and litigated and how the Justices operate behind the red curtain.”
Mandery, who worked on Ruth Messinger’s unsuccessful bid to be mayor of New York City in 1997, is well suited to use capital punishment as the lens through which to view Supreme Court decision making. He’s written over a dozen academic pieces on the death penalty and other criminal justice issues, as well as 2011’s Capital Punishment in America: A Balanced Examination (Jones & Bartlett). He’s got relevant real-world experience,too: during his stint as a litigator, he represented an inmate on Alabama’s death row. Mandery has “long been fascinated by the fact that so few people realize that the Court ruled the death penalty unconstitutional,” and with three novels under his belt, (including Dreaming of Gwen Stefani [Ig Publishing, 2007] featuring an evolutionary biologist–turned–Papaya Queen hot dog salesman), he suspected that “there might be a good story to be told.”
To get that story, Mandery benefited from persistence (and patience), ultimately getting many former Supreme Court law clerks to talk on the record. Most seemed to have a sense of obligation to history and understood the importance of telling this story comprehensively and fairly. Mandery points out that “[t]he death penalty is an emotional subject for many people, and in many instances I had the sense that the conversations I had were cathartic for the person I interviewed.”
Those sources led him to his most significant discovery—that Justices Potter Stewart and Byron White reached an 11th-hour compromise that effectively decided Furman. Mandery’s former professor H.W. Perry insisted in Deciding to Decide (Harvard Univ. Press, 1994) that horse-trading almost never occurs on the Supreme Court, yet Mandery found that substantial negotiation occurred in both Furman and Gregg.
Currently associate professor and chairperson of the Department of Criminal Justice at CUNY’s John Jay College of Criminal Justice, Mandery has hopes that this book will facilitate a broader discussion about the law and the role of the Supreme Court. “In my experience as a professor, most people believe the Justices deduce law, but this couldn’t be further from the truth. The law doesn’t lend itself to formulaic application, and Justices—like all human beings—are complex, socially situated actors.”