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dc.contributor.author Barrett, Corinna Barrett
dc.date.accessioned 2010-01-22T22:02:52Z
dc.date.available 2010-01-22T22:02:52Z
dc.date.issued 2007-02
dc.identifier.citation 82 Wash. L. Rev. 1 (2007) en_US
dc.identifier.issn 0043-0617
dc.identifier.uri http://hdl.handle.net/1773.1/188
dc.description.abstract Corinna Barrett Lain, Associate Professor of Law, University of Richmond School of Law. Abstract: For the first time in a long time, the Supreme Court’s most important death penalty decisions all have gone the defendant’s way. Is the Court’s newfound willingness to protect capital defendants just a reflection of the times, or could it have come even without public support for those protections? At first glance, history allows for optimism. Furman v. Georgia, the 1972 landmark decision that invalidated the death penalty, provides a seemingly perfect example of the Court’s ability and inclination to protect capital defendants when no one else will. Furman looks countermajoritarian, scholars have claimed it was countermajoritarian, and even the Justices saw themselves as playing a heroic, countermajoritarian role in the case. But the lessons of Furman are not what they seem. Rather than proving the Supreme Court’s ability to withstand majoritarian influences, Furman teaches the opposite—that even in its more countermajoritarian moments, the Court never strays far from dominant public opinion, tending instead to reflect the social and political movements of its time. This Article examines the historical context of Furman v. Georgia and its 1976 counterpart, Gregg v. Georgia, to showcase a fundamental flaw in the Supreme Court’s role as protector of minority rights: its inherently limited inclination and ability to render countermajoritarian change. In theory, the Court protects unpopular minorities, but in practice it is unlikely to do so unless a substantial (and growing) segment of society supports that protection. Even then, Furman reminds us that the Court’s “help” may do more harm than good. If the past truly is a prologue, Furman portends that the Court’s current interest in scrutinizing the death penalty will not last forever. Like the fairweather friend, the Court’s protection will likely be there in good times but gone when needed the most en_US
dc.language.iso en en_US
dc.publisher Seattle: Washington Law Review, University of Washington School of Law. en_US
dc.subject Article
dc.title [82WashLRev0001] Furman Fundamentals en_US
dc.type Article en_US
dc.rights.holder Copyright 2007 by Washington Law Review Association.


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