Three of the judges of the Gregg majority subsequently renounced it. When Lewis Powell’s biographer asked him shortly after his retirement if he wished he could change his vote in any case, Powell said he would have voted the other way in any death penalty case. Towards the end of his term, Harry Blackmun wrote a 9,000-word dissent in an otherwise mundane case which stated that he “would no longer tinker with the machinery of death”. And John Paul Stevens, the last living member of the tribunal that decided Gregg, said after retiring that he had become “disenchanted” with capital punishment after witnessing first-hand the court’s mismanagement. In no other area of American law have so many judges publicly denounced their former positions on an issue or case in this way.
Echoing that tradition, Breyer pointed to three areas where he saw serious cause for concern. He pointed to a growing body of evidence on wrongful convictions and death row exonerations, weakening the reliability of the death penalty and increasing the risk of serious miscarriages of justice. Death sentences are handed down in a way that can only be described as arbitrary, with factors such as race, wealth and geography playing a large role in life or death outcomes. Virtually all executions only take place after excessively long delays, depriving them of any supposed deterrent effect. And compounding those flaws, he noted, was the modern rarity of the death penalty: a handful of counties in a handful of states account for most death sentences and almost all executions, making it even more arbitrary who is killed by the government.
In the end, Breyer came to the same conclusion as some of his predecessors. “In 1976, the Court thought that the constitutional infirmities of the death penalty could be cured; the Court has in effect delegated significant responsibility to the states to craft procedures that would protect against these constitutional issues,” he wrote. “Nearly 40 years of studies, investigations and experiments, however, clearly indicate that this effort has failed.”
Breyer is known for seeking consensus and collegiality on the court, and he framed his dissent not as a sweeping denunciation of the court and its precedents, but as an invitation for his colleagues to reconsider them. Two of his brothers responded with a mixture of outrage and rejection to this suggestion. Judge Clarence Thomas opined that if the court accepted Breyer’s invitation to rethink its precedents on the death penalty, it should also revisit its 1976 ban on mandatory death sentences. Antonin Scalia wrote that the Constitution placed the decision in the hands of the American people, and that in “arrogating to himself the power to overrule that decision, Judge Breyer not only rejects the death penalty, he rejects the Enlightenment”.