Washington Law Review

Article

Atoning for Dred Scott and Plessy While Substantially Abolishing the Death Penalty

June 01, 2020 | 95 Wash. L. Rev. 737

Abstract: Has the Supreme Court adequately atoned for Dred Scott and Plessy? A Court majority has never confessed and apologized for the horrors associated with those decisions. And the horrors are so great that Dred Scott and Plessy have become the anti-canon of constitutional law. Given the extraordinary circumstances surrounding the Court’s historical complicity in the brutal campaign against African Americans, this Article contends that the Court could appropriately do more to atone.

The Article asserts that the Court could profitably pursue atonement while abolishing capital punishment for aggravated murder. The Article shows why substantial abolition of the capital sanction would constitute a relevant response to the Court’s past complicity in the long, violent campaign for white supremacy. The Article also explains why substantial abolition, with a confession and apology, would involve little social cost and could send a valuable message.

As for how our racial history could help justify substantial abolition in the language of the Constitution, the Article proposes an approach suggested by decisions in which the Court has combined two or more clauses to justify an outcome that neither clause would authorize on its own. In the death-penalty context, the Court could aggregate the prohibition on cruel and unusual punishments and the command of equal protection. Under that approach, the Court need not find a national consensus against death-penalty systems, nor must it find purposeful discrimination. The Court could rely, instead, on the inability to refute that those systems are remnants of the judicially authorized pursuit of white supremacy. The nature of that conclusion would also distinguish death from other punishments and thereby solve some problems that the Court has identified with abolition using a single-clause methodology.

The arguments for vigorous Supreme Court atonement and for limiting the death penalty connect, although they stand apart. The Court could look for a better context than the death penalty to apologize for Dred Scott and Plessy, but a better context is hard to fathom. Likewise, the Court could justify, without apology, restricting the penalty based on our judicially sanctioned quest for white supremacy, but an apology for Dred Scott and Plessy would add a healing message. The actions are synergistic. The Court could achieve something special through the mutually-reinforcing symbolism that could come with simultaneous restriction of the death sanction and robust atonement for Dred Scott and Plessy.

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