Three themes have characterized death penalty abolition throughout the Western world: a sustained period of de facto abolition; an understanding of those in government that the death penalty implicates human rights; and a willingness of those in government to defy popular support for the death penalty. The first two themes are present in the U.S.; what remains is for the U.S. Supreme Court to manifest a willingness to act against the weight of public opinion and to live up to history’s demands.
When the Supreme Court abolishes the death penalty, it will be traveling a well-worn road. This Essay gathers, for the first time and all in one place, the opinions of judges who have advocated abolition of the death penalty over the past half-century, and suggests, through this “law of abolition,” what a Supreme Court decision invalidating the death penalty might look like. Although no one can know for sure how history will judge the death penalty, odds are good that the death penalty will come to be seen as one of the worst indignities our nation has ever known and that a Supreme Court decision abolishing it will, in time, be widely accepted as right.