The Supreme Court Analysis

1. I think some of the work of the Supreme Court is constrained by institutional roles and procedures but the vast majority of work done by the Supreme Court is autonomous. One of the first examples of constraint by an institutional role and longstanding tradition in the book “A Wild Justice” is “In the early 1960s, the notion that executions were cruel and unusual punishment seemed fanciful. When the Founding Fathers drafted the Constitution, the death penalty was mandatory for most felonies and used in every state. The Fifth Amendment referenced capital crimes explicitly and implicitly when it said no person should be deprived of “life, liberty, or property” without due process of law. The Fourteenth Amendment, adopted in the aftermath of
the Civil War, used the same language. No Supreme Court justice had ever suggested that capital punishment might be unconstitutional.
Nothing should have suggested to Justice Arthur Goldberg that the idea of using the Constitution to strike down the death penalty could succeed.” (Pg. 5) This is definitely an institutionalized and traditional way of thinking.

I think Justice Goldberg demonstrated a considerable amount of autonomous work because he “fomented an intellectual revolution: a radical transformation of the view of the Court’s proper role that had profound consequences for capital punishment and American civil liberties.”(Pg. 5) Justice Goldberg was very consequential and powerful when he was a Justice on the Supreme Court and it seemed like he tried to move away from traditional viewpoints. He formed his own opinions on capital punishment that were completely separate from how the court ruled in the past. Additionally, Goldberg abhorred the death penalty since he was a child and he continuously thought about overturning the death penalty. He also drew a direct link between the Holocaust and capital punishment. Goldberg had no confidence in the ability of politics to produce justice. (Pg. 8) He thought about capital punishment much differently than the other justices and
he strongly disagreed with the Founding Father’s mandatory death penalty. He was the only justice to strongly voice his opinion about it being unconstitutional. Goldberg went against the traditional view of the death penalty and he was the most autonomous justice and he really separated himself from the other justices because of his strong opposition to the death penalty. Furthermore, Goldberg thought capital punishment was bad public policy. He didn’t believe that the death penalty deterred violent crime. He thought states applied it discriminatorily: In practice the death penalty was used exclusively against the poor and the politically powerless. Goldberg also worried about the problem of executing innocents. In his mind this included people who didn’t commit the crime for which they had been convicted and people who were sentenced under outdated principles. (Pg. 8) For all these reasons he decided to use his power and position to end capital punishment. He went against the institutional roles that were placed on the Supreme Court justices and did what he needed to do to end capital punishment.

Justice Hugo Black took an activist view of the Court’s role, while Justice Felix Frankfurter advocated for judicial restraint. On a personal level Justice Black was a political master while Frankfurter was an overbearing pedant. To some extent each of the nine Justices defined themselves by their ideological or personal relationship to these two Justices. (Pg. 9) Additionally, Frankfurter and Black disagreed on almost everything, but they both agreed that the death penalty didn’t offend the Constitution. (Pg. 11) Justice Byron White was frustrated by Justice Black’s activism. Justice White said that when he had joined the Court, nothing had changed in fifteen years. He said “The same issues that were here in 1947 are still here, and Hugo still runs the Court.” (Pg. 10) One of Justice White’s principles was that legislative bodies, not judges, should make social policy. White once told one of his friends that “Judges have an exaggerated view of their role in our polity.” (Pg. 10) I think Justice White felt more constrained to institutional roles and procedures much more than some of the other Justices did. I think he really values tradition and he doesn’t think it’s his place to make social policy. He also doesn’t think it’s the role of any Supreme Court Justice to make social policy which explains why he was so irritated by Justice Black.

The controversial principle that judicial philosophies are neither liberal or conservative is commonly associated with Justice Antonin Scalia. He believed that the Constitution should be interpreted in accord with the intent of the framers. Theories are liberal or conservative only in context. (Pg. 12) Then, as Justice Frankfurter advanced his doctrine on judicial restraint, the context changed. During World War II the Supreme Court emerged as the progressive agent, protecting citizens against wartime hysteria in Congress, fear of Communism, and aggressive crime-control tactics. In these contexts judicial restraint was regressive. (Pg. 12) Frankfurter remained consistent and said that “The Supreme Court should be reluctant to change its core principles, lest it squander the public’s trust.” (Pg. 12) While the Warren Court transformed America, Frankfurter retained his commitment to democratic processes. Justice Black on the other hand didn’t believe that the Constitution required such deference to democracy. His views were an extension of his roots. Unlike Frankfurter, Black was almost entirely self-taught. (Pg. 12) Justice Black was less traditional and less engrained in the institutional roles and procedures placed on the Supreme Court. He believed that the role of the Constitution was limited. He also focused on history, literalism, and absolutism. Black didn’t have any allegiances or agendas he wanted to put into play so he developed a unique jurisprudential philosophy. In Justice Black’s view the language of the Constitution should always be the Court’s touchstone. He though the language should be determined by examining the Constitution as it would have been understood at the time it was written. (Pg. 14) Black’s emergent philosophy, “originalism” had deep roots in his religion. By contrast, Frankfurter believed that the role of a Supreme Court justice was to seek answers through a combination of constitutional history, legal precedent, and a judge’s own individual sense of fairness. (Pg. 14) Justice Frankfurter was also constrained by institutional roles and procedures because he put a lot of emphasis on constitutional history and how the Court ruled in past decisions.

When the Constitution didn’t say something explicitly, Black often fell on the conservative side of the fence.
On the issue of the death penalty, though, Frankfurter and Black found common ground. The framers hadn’t intended to ban capital punishment. Frankfurter regarded the death penalty as a complex moral question best left to the states. The Court didn’t address whether a state could properly take life. During the first 175 years of existence, the Court discussed the cruel and unusual punishment clause only ten times, the death penalty merely six. (Pg. 15)
Another example of the Court being autonomous and moving away from institutional roles and procedures is when Goldberg proposed to measure the constitutionality of capital punishment not by the language or intent of the Founding Fathers but rather by the conditions and needs of modern society. (Pg. 23) Overall, the Supreme Court was an institution of deep, long-standing traditions and customs. (Pg. 24) However, some of the work of the Supreme Court is
autonomous.

At least four of the justices must agree to issue a Writ of Certiorari in order for the Supreme Court to hear a case. A big factor in deciding if the Court will hear a case if lower courts have disregarded past Supreme Court decisions. The court decides cases by determining if there is a constitutional violation and the justices write out opinions outlining their reasoning in reaching their decision for the case.

I think the institutional roles and procedures is the more realistic view of how justices actually make decisions because the way justices like to rule is based on the Constitution, legal precedent, and past decisions. The justices are still less likely to base their opinions and decisions solely on their own personal beliefs.