Copr. © West 1999 No Claim to Orig. U.S. Govt. Works

45 MERLR 1035

(Cite as: 45 Mercer L. Rev. 1035)

Mercer Law Review

Spring, 1994

Leads Edition: Equitable Powers of the Federal Courts

*1035 FAR RIGHT OF THE MAINSTREAM: RACISM, RIGHTS, AND REMEDIES FROM THE

PERSPECTIVE OF JUSTICE ANTONIN SCALIA'S MCCLESKEY MEMORANDUM

Dennis D. Dorin [FNa1]

Copyright © 1994 by the Walter F. George School of Law, Mercer University;

Dennis D. Dorin

Memorandum

"Are you scared?"

"Of what?"

"How about the gas chamber?"

"Naw, Jake, that's why I got you. I don't plan to go to no gas chamber. I saw you get Lester off, now just get me off. You can do it, Jake."

"It's not quite that easy, Carl Lee."

"Say what?"

"You just don't shoot a person, or persons, in cold blood, and then tell the jury they needed killing, and expect to walk out of the courtroom."

"You did with Lester."

"But every case is different. And the big difference here is that you killed two white boys and Lester killed a nigger. Big difference." [FN1]

I. A "SMOKING MEMORANDUM"?

"It's not exactly one of Washington's liveliest haunts . . . ." Journalist David Kaplan was describing the Library of Congress's Manuscript Division in a June, 1993 Newsweek article. For Kaplan, the metaphor that usually best fit the Division was a mausoleum. Yet, the previous *1036 week, he reported, a place at one of its "50 or so tabletops was the hottest seat in town." The draw? The late Justice Thurgood Marshall's recently opened files. "In all," Kaplan observed, "the 173,700 original documents had journalists and professors standing in line . . . 'You would think we just received Elvis's papers,' said one librarian." [FN2]

Justice Marshall's extensive materials, filling some 231 feet of Division shelf space, had been made available to researchers shortly after his death in January. Academics had quietly mined them for over three months. Then, suddenly, The Washington Post had transformed their availability into "front‑ page news." [FN3] From that time on, they were at the center of an intense controversy. Chief Justice William Rehnquist, declaring that he was speaking for a majority of his "active" Supreme Court colleagues, took the unprecedented step of condemning the Library's opening of them. William T. Coleman, Jr., representing the Marshall family, similarly denounced it as "irresponsible" and "despicable." [FN4] Carl Rowan, [FN5] retired Chief Justice Warren Burger, [FN6] and a host of others joined the outcry.

Never before had a Justice's complete records been opened so soon after he had departed from the Court, they noted. The dangers of such a course were obvious. Premature disclosure of the still sitting Justices' private doubts and debates could well undermine their credibility. And, equally serious, it was likely severely to burden "their exchange of ideas." [FN7] With his profound concern for such possibilities, they contended, Marshall would never have wanted the Library so precipitously to release his papers. [FN8] A decent appreciation of the requisites of the Court's viability as an institution clearly foreclosed such an immediate, and unrestricted, public access.

Yet, even contemporaneous with The Post's stories, some journalists were already concluding that the threats posed by the release of the Marshall Papers had been exaggerated. Aaron Epstein reported, for example, that they had yielded researchers few surprises. [FN9] Their "draft opinions, horse‑trading [memos] and occasional [digs]," Kaplan agreed, *1037 had not proven "a mother lode" for scholars. Despite the "political maelstroms swirling outside" of it, the Court had shown itself "to be a remarkably conscientious [body], its members more Victorian than Machiavellian." [FN10]

A growing number of law professors, political scientists, and historians agreed. The Post and other such media, they observed, had typically gone for the jugular. They had made a beeline for the Court's most sensational cases, those dealing with issues such as abortion, affirmative action, homosexuality, and the death penalty. Yet, Professor Mark Tushnet had found nothing "startling" in The Post's stories. [FN11] Anyone who had researched Marshall's files, added David Garrow, would see that they would cause the Court "little if any embarrassment . . . ." Certainly, Chief Justice Rehnquist had nothing to fear from them: the papers' "thousands upon thousands of memos repeatedly" revealed the Justices "in a most serious and committed light." [FN12] Even one of the most exercised critics of the files' being opened, McGeorge Bundy, conceded by early June that it had precipitated "no disaster." By that time he could observe, with obvious relief, that Marshall's files became "less current and more historical with each passing month." "It is a reasonable assumption," Bundy concluded, "that the liveliest items have already been found and reported." [FN13]

But what is "lively" or "embarrassing" or "startling" or even "shocking" may well vary with the observer. [FN14] And a memorandum that might have proven to be the most astounding document of all of the Marshall Papers may well have been dismissed as innocuous by the great majority of academics and reporters who came upon it during a few frantic weeks of the summer of 1993.

This memorandum was undoubtedly seen by many of the Marshall Papers' researchers. Indeed, it was filed in the same folder as one of the Court's more controversial, recent cases: McCleskey v. Kemp. [FN15] In McCleskey, the Court had rejected, by a five‑to‑four vote, perhaps the *1038 last systemic constitutional challenge to capital punishment for the foreseeable future. For it had held that McCleskey had failed to establish a prima facie case that racial discrimination had permeated the process which Georgia had used to sentence him to the death penalty‑‑despite his having presented the most sophisticated and comprehensive study ever attempted of the interaction between race and capital punishment in a state's criminal justice system. [FN16]

The document in question was a highly confidential January 6, 1987 communication from freshman Justice Antonin Scalia to his Supreme Court colleagues. In it, Scalia expressed his general support for Justice Lewis Powell's initial attempts to draft a majority opinion in McCleskey. But more significantly, it was also a medium for Scalia's "two reservations . . . ." "I disagree," he began,

with the argument that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue. And I do not share the view, implicit in [Powell's draft opinion], that an effect of racial factors upon sentencing, if it could be shown by sufficiently strong statistical evidence, would require reversal.

"Since it is my view," Scalia continued, "that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial [ones], is real, acknowledged by the [cases] of this court and ineradicable, I cannot honestly say that all I need is more proof."

"I expect to write separately to make these points," Scalia concluded, "but not until I see the dissent." [FN17]

A judicial bombshell? A "smoking memorandum"? For anyone not familiar with McCleskey's complexities, it could hardly have seemed so. For, without a thorough grounding in McCleskey, one could easily have found the jargon of Scalia's memo impenetrable. What, for example, was the Baldus study? What "inferences" had it drawn? What "variables" did it seek to examine? Why was their large number in capital cases an *1039 issue? What did Scalia mean by "an effect of racial factors upon sentencing"? Why did he say that jury decisions, in such situations, influenced prosecutorial ones? And what were the implications of his conclusion that "the unconscious operation of irrational sympathies and antipathies" was "ineradicable"?

Six years after Scalia wrote his memorandum, however, perhaps the leading authority on McCleskey, David Baldus, [FN18] whose statistical analysis had been the memo's central concern, was first able to see a copy of it via the Marshall Papers. And that initial reading, Baldus later recalled, had taken his breath away! [FN19]

Was this mere paragraph so shocking, perhaps so radical, as to be breathtaking? This article's first section, Far Right of the Mainstream, answers this question affirmatively. Its second, The Memo As History, suggests the possible relevance of Justice Scalia's memorandum to future attempts to describe, explain and assess his Court's and his decision‑making relating to racism, rights, and remedies in capital punishment cases.

II. FAR RIGHT OF THE MAINSTREAM

No present‑day Justice is purportedly more of a stickler for precision in the use of terms than Antonin Scalia. He is thus reputed to be one of the first to resort to the authorities when the Justices are experiencing semantic difficulties. Pursuing this course with the word, "radical," we find that the dictionary contains the following: "or of from the root or roots; going to the foundation or source of something; fundamental; basic . . . extreme; . . . favoring fundamental . . . change . . . ." [FN20]

All of these characterizations would seemingly apply to the message of Justice Scalia's McCleskey Memorandum. [FN21] As we shall see, Scalia seemed to have no hesitation in using this paragraph to attempt to undermine such cases of the previous term as Bazemore v. Friday. [FN22] Other far‑reaching ones of the past few years were similarly threatened. [FN23] Far more importantly, the very capital punishment regime that *1040 the Court had inaugurated with such landmark cases as Furman v. Georgia, [FN24] Gregg v. Georgia, [FN25] and Woodson v. North Carolina, [FN26] was casually, but, nevertheless, directly under assault via Scalia's memo. [FN27]

But suppose Scalia actually was attacking the very foundation of the Court's modern death penalty jurisprudence? Was it not the legacy almost entirely of the 1970s? And if it were contrary to a proper interpretation of the Constitution, then Scalia, as a good judicial restraintist, would have every justification to attempt to destroy it.

Scalia's memo, though, suggested strongly that he was not willing to stop with twentieth century cases. He seemingly would go back to the roots of both American criminal justice and Equal Protection Clause doctrine to undermine even so established a case as Strauder v. West Virginia. [FN28] Indeed, viewed in context, the Scalia Memorandum may well have championed a version of Equal Protection jurisprudence even to the philosophical right of Justice Henry Brown's in Plessy v. Ferguson! [FN29]

Bizarre and irresponsible assertions? Ones that could not possibly be defended through an exegesis of a Justice's mere one‑paragraph note to his colleagues‑‑indeed, one that stated positions that, only several weeks later, he at least formally abandoned? [FN30] This and the next section of this article directly address these questions. But first we consider whether such a controversial memorandum, in the usual course of the Court's workings, would have been expected of a Justice merely serving his or her initial term.

A. The Freshman Justice

The Antonin Scalia who began his tenure on the Court with the 1986 Term immediately became the focus of researchers who attempt to determine whether a "freshmen effect" influences the Justices' decision‑making. This phenomenon, which had been reflected in the performances of a number of Scalia's predecessors, was characterized by three *1041 elements. First, a Justice experiencing it would feel somewhat disoriented as he or she attempted to come to grips with his or her new duties. Second, his or her seniors could be expected to spare him or her a full share of majority opinion‑writing, "going easy" on him or her as he or she tried to settle into the Court's processes. Third, he or she would avoid aligning himself or herself with either the Justices' liberal or conservative factions. [FN31]

After his first year on the Court, however, Scalia had made it clear that only the second characteristic applied to him. He had apparently shown no hesitation whatsoever in aligning himself with the conservatism of Chief Justice Rehnquist, voting with him 82% of the time‑‑a percentage second only to that for the liberal Brennan and Marshall, who were together in 94% of their cases. [FN32]

And the new Justice gave no indication whatsoever of being overawed by his position. Perhaps his many years as a law professor, executive official, and judge on the especially demanding United States Circuit Court of Appeals for the District of Columbia Circuit‑‑where he had earned the reputation of being one of its best writers‑‑had prepared him for his new challenges. [FN33] He even became the Term's third most prolific Justice, despite his below average quota of majority holdings, producing 17 concurring opinions (the Court's mean was slightly over eight) and a dozen dissenting ones. [FN34]

"[H]ardly the kind of behavior one would expect from a bewildered, insecure, or disjointed neophyte," Thea Rubin and Albert Melone reported in their analysis of Scalia's initial term. "Scalia appears to be a [J]ustice confident in his ability." He was surely not "reticent to express his views." He might have "an intellectual independence and energy," they concluded, "rivaling that reputed" to Justice John Paul Stevens. [FN35]

And Rubin and Melone had not attempted to monitor the active role Scalia quickly assumed during the Court's oral arguments, one *1042 reminiscent of that of the late Justice Felix Frankfurter, as he intensely and pervasively interrogated counsel! [FN36]

Nor were they in a position to examine the behind‑the‑scenes Scalia as he sought to influence his colleagues through Conference and other exchanges. Obviously, his activities in this respect were, for the seven years before the opening of Marshall's papers, largely hidden from public view.

Against this background, the Scalia Memorandum is especially insightful in the perspective it provides upon the 1986‑1987 Court's freshman Justice. In the coming years, Scalia would develop the reputation of being one of the first Justices "off the mark" in responding to drafts of majority opinions. [FN37] Yet, in McCleskey, his memo, which served as his "return" to Justice Powell's initial two attempts to write a Court opinion, was a full two months in the making. And it would take him yet another three weeks eventually to bury it and join Powell's circulations. [FN38]

Had McCleskey "bewildered" him? As early as two terms later, he was at least maintaining that, by far, it had caused him the greatest difficulties of any of the Court's cases that he had yet encountered. [FN39]

Was this because Scalia had been bedeviled by the task of making sense out of McCleskey's cutting‑edge statistics? Scalia's McCleskey Memorandum and the transcript of his participation in McCleskey's oral arguments, as we shall see, suggest that this was not the case. On the contrary, they seem to indicate that the new Justice possessed a high degree of confidence in his statistical abilities. Then why this intellectual agony? Perhaps it stemmed from an attempt on Scalia's part to develop and defend a position utterly at odds with those of everyone besides him‑‑law professors, trial and appellate attorneys, judges and Justices‑‑who had ever dealt professionally with McCleskey. [FN40] And, if this were so, Scalia's memo might be far from being merely unusual; it might be radically out of the mainstream.

*1043 "I disagree with the argument," we have seen Scalia as saying, "that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue." [FN41] The enormity of this statement can only be fully grasped through an examination of McCleskey's crucial details.

B. Warren McCleskey's Strategy

No modern Supreme Court case focused more dramatically, and directly, upon the issue of racism in the American criminal justice system than Warren McCleskey's. McCleskey seemed the stereotype of the violent black felon so feared by contemporary American society. A seemingly sociopathic armed robber, he had killed a police officer, Frank Schlatt, in 1978 while holding up an Atlanta furniture store. [FN42]

McCleskey had received the death sentence for the Schlatt murder the very next year, but his attorneys had kept him alive through the next four via a series of state appeals and post‑conviction proceedings. Having exhausted such avenues in 1983, however, they had filed a petition for a writ of habeas corpus in the Federal District Court for the Northern District of Georgia that was to culminate in the United States Supreme Court's 1987 ruling.

McCleskey's NAACP Legal Defense and Educational Fund (LDF) lawyers contended in his federal habeas corpus hearing that, inter alia, he had been condemned by a Georgia capital sentencing system rife with racial discrimination. There was a good chance, they argued, that he would have received life imprisonment had he been white. But even more important, they asserted, was the race of his alleged victim. Georgia's general statistics showed that killers of whites within its borders were eleven times more likely to be sentenced to death than those of blacks! So, had Officer Schlatt been black, the odds were excellent that McCleskey would not be facing execution. [FN43]

Georgia's initial rebuttal was predictable. It had been a staple for years of states accused of discriminating racially in their death penalties. A very large percentage of the state's black homicide victims, *1044 it would argue, died in street, barroom or domestic altercations. Quite properly, such "hot‑blooded" homicides were not likely to lead to capital sentences. Far larger percentages of whites, on the other hand, were murdered by "cold‑ blooded" strangers committing armed robberies and other violent accompanying felonies‑‑precisely the types of offenders against whom the post‑Gregg death penalty statutes should be, and were, targeted.

But McCleskey's attorneys claimed that they had a study that destroyed this argument. A research team headed by Professor David Baldus of the University of Iowa Law School had selected Georgia for the most methodologically sophisticated and comprehensive analysis ever undertaken of whether racial discrimination infected a state's capital sentencing. [FN44]

Employing such statistical techniques as multiple regression analyses, Baldus and his associates had examined over 2,000 homicide cases from 1973 to 1979, attempting to account for as many as 230 factors other than race that might have led to the disparities between white‑victim and black‑victim sentences.

Their findings? When all such variables were accounted for, the murderers of whites still had a 4.3 times greater chance of being sentenced to death‑‑a statistical link between race and capital sentencing far stronger than that between smoking and cancer or heart disease. Two of the most powerful factors determining who was to be executed in Georgia, Baldus' team consequently concluded, were the races of the perpetrator and his or her victim. [FN45]

The stakes were thus very high in 1986 when McCleskey's case was argued before the Justices. A loss for Georgia might well invalidate its capital punishment system, the very one that the Court had itself proclaimed as a model for the country in Gregg v. Georgia. [FN46] If it fell, what was to happen to all of the other state systems? And what was to prevent enterprising defense lawyers from applying Baldus' approaches to noncapital cases? Would not the entire criminal justice system eventually be besieged by such challenges? [FN47]

*1045 A human life was at stake for the Legal Defense Fund. But it stood to lose far more than Warren McCleskey. There simply was no social science study of death sentences and race that could even touch the potential usefulness of Baldus'. Its evidence was the strongest ever that race played a substantial role in determining which of those persons convicted of homicide was to be selected for capital punishment. [FN48] If the state won, the Court might never rule that the administration of the death penalty, anywhere, could be systemically unconstitutional on racial discrimination grounds.

But how to link Baldus' results to the Constitution? The LDF chose to build its case upon two provisions‑‑the Fourteenth Amendment's Equal Protection and the Eighth Amendment's Cruel and Unusual Punishment Clauses. [FN49]

The LDF launching point for both attacks was reflected in a pronouncement by the Court a few terms before in Zant v. Stephens. [FN50] If Georgia or any state had attached the "aggravating circumstance" label to constitutionally impermissible factors, ones totally irrelevant to the capital sentencing determination, such as the defendant's race, the Justices had warned, the requisites of due process would invalidate it.

This same doctrine, the LDF contended, applied to the Equal Protection and Cruel and Unusual Punishment Clauses. And it encompassed far more than what states had placed upon the faces of their statutes; it also was applicable to the actual workings of their capital systems.

"If the State of Georgia had criminal statutes that expressly imposed . . . harsher penalties" on black defendants because of their race, or on those who killed whites rather than blacks, the LDF's John Charles Boger thus began his October 15, 1986 Supreme Court oral argument on behalf of Warren McCleskey, it would "plainly violate the Constitution." [FN51]

Of course there was a time, Boger continued, when Georgia did just that. Under its pre‑Civil War statutes, for example, free blacks, as well as slaves, "could be given a death sentence merely for the crime of assault on a . . . white citizen." The Fourteenth Amendment, he *1046 observed, caused such facially explicit laws no longer to be written. But the "old habits of mind," "the racial attitudes" they embodied, had survived, as the Court well knew, well into the present century. [FN52]

Indeed, Boger contended, Baldus' evidence proved that, as recently as the last decade, at the very time when McCleskey was tried and sentenced to die, Georgia's prosecutors and juries were employing their post‑Gregg capital punishment system as if the pre‑Civil War laws were still operative. For, in actuality, they had maintained a process whereby a black person convicted of the murder of a white went to his sentencing hearing "with as serious a hardship against him" on racial grounds alone as if the prosecutor had hard evidence that he had been tried previously of another murder. Indeed, the color of the defendant's skin, and that of his victim, in reality, constituted as grave an aggravating circumstance "as those expressly designated by Georgia's legislature." [FN53]

But how were Baldus' general findings relevant to McCleskey's specific case? It was in attempting to build this linkage that the LDF invoked the Equal Protection and Cruel and Unusual Punishment Clauses.

Both the language and history of the former, it contended, left no doubt that its framers specifically intended for it to prohibit the unequal enforcement of the states' criminal laws based on the races of victims. The Clause was explicitly targeted against the Southern states' post‑Civil War Black Codes, which had done just that. Hence, it argued, the Clause's specific wording! It clearly said "nor shall any state deprive any person within its jurisdiction of the Equal Protection of the Law." "On its face," the LDF asserted, "that language speaks more directly to discrimination by the race of the victim . . . than to any other form . . . ." [FN54]

And no state action could be more suspect, under the Equal Protection Clause, than the discriminatory treatment of minorities in the administration of criminal justice. For, as was observed in Rose v. Mitchell, [FN55] such behavior struck "at the fundamental values of our judicial system and our society as a whole . . . ."

Were such considerations not sufficient, the Court in McCleskey was dealing with the right to life itself. When the state sought to kill one of its citizens, the LDF concluded, it could do so only upon a showing of the most compelling of interests. Racial classifications relating to a state's infliction of its death penalty thus had to be subjected to "the strictest *1047 scrutiny and [were] justifiable, [if ever], only by the weightiest of considerations." [FN56]

Of course, McCleskey's lawyers pointed out, Georgia had never even attempted, throughout all of this litigation, to proffer a rational justification for racial discrimination in capital sentencing, realizing that none was conceivable. Such "race‑based decision‑making," it asserted, embodied a "quintessential irrationality" that blatantly offended "the mandate of equal treatment embodied in the Fourteenth Amendment." [FN57]

Yet, Professor Baldus' analysis had shown, the LDF continued, that Georgia's prosecutors and juries had engaged in precisely this activity, producing just the sort of "clear pattern unexplainable on grounds other than race" condemned by Arlington Heights v. Metropolitan Housing Authority. [FN58] Here the combination of very strong racial disparities and ample opportunities for discrimination on the part of prosecutors and jurors added up to a prima facie showing exceeding "every standard ever announced by [the] Court for proof of [discriminatory acts] under the Equal Protection Clause." [FN59]

Not only had Georgia produced a system in which the victim's race was as influential in death sentencing as whether his or her killer had a prior record of murder; it had implemented one in which this factor was more or less equally as important as whether the defendant had been the prime mover in the killing, had admitted guilt, or had even waived a defense! [FN60]

Whether this result was a function of prosecutors' conscious, or even unconscious, prejudices, or their attempts merely to respond to those they thought were possessed by juries, was irrelevant. The Equal Protection Clause, the LDF argued, prohibited every instance of such state‑sanctioned discrimination, irrespective of its source or magnitude. [FN61]

The Baldus researchers had carefully employed a plethora of different models, techniques, and measurements to examine a significant number of the system's decision points, according to McCleskey's legal team. And the process of elimination they had employed had left them with *1048 such a powerful independent variable of racial discrimination that they could say, with confidence, that the odds were better than 50% that Officer Schlatt's race had been the determinative factor in Warren McCleskey's death sentence. [FN62]

But this assertion could only be supported if the LDF were able to convince the Court that Baldus' study was so valid and reliable, as social science, that it established a strong inferential case of intentional discrimination by Georgia against McCleskey.

Its Equal Protection argument therefore rested entirely upon whether the racially discriminatory patterns it reported would be accepted as accurately mirroring reality. How could the Justices be persuaded to such a position? How could their usual hostility to basing their decisions upon statistics be overcome? [FN63]

The most critical part of the LDF's McCleskey strategy addressed these questions through recourses to the Court's precedents in two significant areas‑‑Equal Protection cases relating to exclusions of minorities from grand and petit juries and Title VII ones focusing upon allegations of employment discrimination. It was thus imperative for the LDF to link Baldus' analysis to the statistical approaches already approved by the Court as sources of sufficiently probative circumstantial evidence of racially discriminatory practices in such litigations.

Were it to do so, McCleskey's lawyers reasoned, its chances of winning were superb. And the Baldus findings, they believed, far transcended any of those of past cases in their sophistication, precision, and comprehensiveness. If accepted in McCleskey, they would establish a powerful case of systemic racial discrimination.

Since neither Georgia nor anyone else involved in the McCleskey litigation had ever contended that the Equal Protection Clause permitted systematic racial discrimination in the infliction of the death penalty, the LDF reasoned that it might well end up saving McCleskey.

The Court had frequently accepted quantitative proofs of intentional racial discrimination in the grand and petit jury venire cases. The selection of such juries, it had recognized, was at the very heart of the pursuit of justice in the criminal justice system. It therefore had held that the states' processes for doing so should meet very rigorous standards. For this reason, statistical analyses suggesting racially discriminatory practices were often found sufficient, in these specific instances, to establish prima facie cases when they might not be so in other settings.

*1049 But what could be more sensitive a decision than whether to sentence someone to death, asked McCleskey's attorneys. It was surely at the very least as critical to just judicial determinations, as those relating to the selection of jurors. Therefore, at a minimum, as stringent requirements should be placed upon the states making it. [FN64]

Employing this standard, the LDF noted that the Court had given decisive weight to significant racial disparities in the recruitment of persons for service on grand and petit juries. In Casteneda v. Partida, [FN65] for example, a two‑to‑one disparity between Mexican‑Americans in the Texas county in question and those actually summoned for participation on the grand jury‑‑in the face of an insufficient nondiscriminatory explanation for this discrepancy on the part of the county's authorities‑‑led to a reversal of the defendant's conviction.

This case, and the many like it, the LDF argued, had shown beyond dispute that statistical analysis had become a major indirect indicator of racial discrimination in criminal justice Equal Protection cases involving multiple decision‑makers.

The LDF did concede that the key variables in grand and petit jury venire litigation might not be as extensive as those coming into play in the determination of whether a convicted murderer should be subjected to the death penalty. In a case like Castenada v. Partida, for example, a county's jury commissioners were allegedly supposed to take into account "only" whether a prospective juror was a citizen of Texas and the county, was of sound mind and good moral character, was literate, had no previous felony conviction, and was under no pending indictment or other legal accusation against him or her for theft or another serious crime. [FN66]

But the statistical analysis in such cases, the LDF countered, was also primitive. It was comprised more or less of a simple comparison and contrast between the percentage of members of minorities in the jurisdiction and that of those actually selected as jurors.

And this simplicity was dramatized by the Court's most recent decision in this area, its historic holding in Batson v. Kentucky. [FN67] During its very last term, the Court had issued an opinion by Justice Powell, that, in a black defendant's case, a prosecutor's mere striking of a handful of prospective African‑American criminal trial jurors through his peremptory challenges was, without a non‑racial explanation, a prima facie *1050 demonstration of the racial discrimination forbidden by the Equal Protection Clause.

If the Justices were willing to accept mere percentages in the mainstream grand and petit jury venire cases and a sequence whereby merely several putative black jurors were struck in Batson, then surely the chances were good that it would gauge as powerfully probative Baldus' cutting‑edge studies in McCleskey. [FN68] But the Court's doing so rested critically upon how it would respond to Baldus' employment of multiple regression analysis.

For the LDF, there was also a good reason for optimism on this score, given the Justices' response, during just the previous term to the theory, methodology, and results of this staple of modern social science in Bazemore v. Friday. [FN69]

Bazemore and a number of other black employees of the North Carolina Agricultural Extension Service had maintained that they had suffered racial discrimination in employment, at the hands of North Carolina, in violation of Title VII of the Civil Rights Act of 1964. The very heart of their case rested upon the results of several multiple regression analyses, which, they contended, showed that they received from $300‑$400 less per year than white Agricultural Extension Service employees, when such relevant factors as education, tenure, job title, and experience were held constant. [FN70]

Both the federal district court and the United States Circuit Court of Appeals for the Fourth Circuit had rejected their evidence. These courts deemed it inapposite to a case in which members of minorities were attempting to show a pattern or practice against them, on the basis of their race, in such aspects of employment as salaries.

Such regressions, these lower courts had held, were unacceptable because they did not include all of the measurable variables that might have affected salary levels. For example, they had never considered that local North Carolina counties contributed different amounts of funds to pay Agricultural Extension Service employees. These disparities in county payments might have accounted for the salary differentials revealed by Bazemore's studies. [FN71]

The Court's response, through an opinion by Justice William Brennan, was that the regressions' failure to include all possible relevant variables reflected only upon their probativeness, and not their admissibility. And *1051 they could well prove a Bazemore's case, Brennan made clear, without including every factor that somehow might impact upon decisions such as those relating to salaries. The standard of proof in such cases was the preponderance of the evidence. If a regression were sufficiently probative to lead a court "fairly to conclude ... that it [was] more likely than not that impermissible discrimination [existed], the plaintiff [was] entitled to prevail." [FN72]

North Carolina, Brennan had concluded, had provided close to no evidence at all showing either that the disparities identified by Bazemore's regressions did not exist or that they could be explained by non‑racially discriminatory factors. The very purpose of multiple regression analysis, he explained, was to organize and explain data that appeared to be random. Its results in this case shifted the burden of proof to North Carolina. Yet, the state's strategy at the trial was to do little more than "declare simply that many factors [went] into making up an individual employee's salary." It had made no attempt of which the Court was aware, statistical or otherwise, to demonstrate that "there was no significant difference between the salaries of blacks and whites," when the variables were properly organized and accounted for. [FN73]

The LDF therefore viewed Bazemore as a potent weapon. Only Chief Justice Warren Burger was gone from the unanimous Court that had produced it, having been replaced by former Justice Rehnquist, whose chair, in turn, had been taken by the newly appointed Justice Scalia. Bazemore had explicitly and forcefully legitimated multiple regression analysis in racial discrimination cases. The Court had recognized it as a powerful tool by which to delineate and attempt to explain racial disparities. In this light, it seemed utterly irrelevant to McCleskey's attorneys whether one employed it in a Title VII case or one involving Equal Protection. The empirical inquiry in both was exactly the same.

One dramatic distinction, however, between the black litigants in Bazemore and McCleskey stemmed from what each sought from the litigation. Bazemore was pursuing a rectification of a $300‑$400 annual deficiency in his salary. McCleskey was seeking the very saving of his life. Hence, the LDF argued, evidence of racial discrimination in violation of the Equal Protection Clause "that would suffice if the stakes were a job, promotion, or the selection of a jury should not be disregarded when [they became] life and death. Methods of proof and fact‑finding accepted as necessary in every other area of law should not be jettisoned in this one." [FN74]

*1052 But, as noted previously, the Equal Protection argument was just one of the two McCleskey's lawyers were presenting. The other, premised directly upon the Cruel and Unusual Punishments Clause of the Eighth Amendment, they reasoned, seemed to them equally, if not even more, persuasive.

As pointed out before, the Eighth Amendment challenge could also be developed initially from the Court's declaration in Stephens that the Constitution forbade race as an aggravating circumstance in the infliction of the death penalty. Furman and Gregg, the LDF contended, stood for the proposition that capital punishment could never be inflicted arbitrarily and capriciously. Yet, according to the LDF, that is precisely what would happen if racism affected, in a pervasive fashion, the selection of those who were to die. [FN75]

The Court's Eighth Amendment cases made it clear to the LDF that death had to be imposed fairly, and with reasonable consistency, or not at all. Departures from this rule, the Justices had found, were intolerable, no matter what the reasons for them. A state's capital sentencing system therefore had to treat equals equally while making society's life‑or‑death decision. A defendant's race, or that of his or her victim, it asserted, was irrelevant to such a determination. So, an administration of capital punishment that counted it heavily, for whatever reason, was a per se violation of the Eighth Amendment.

This meant that there was no need for a McCleskey to demonstrate an invidious intent on the part of a state's decision‑making. Under cases like Furman, Gregg, and Godfrey v. Georgia, [FN76] risks and results alone counted. Death was irrevocable. The LDF referred to cases like Woodson [FN77] and California v. Ramos, [FN78] in which the Court had recognized repeatedly that the infliction of death required a level of reliability, care and fairness far above those acceptable for less serious punishments.

Hence, when the risk of racial discrimination became significant, the Eighth Amendment was implicated, according to the LDF, whether the allegedly discriminatory actions were the results of prosecutors' or jurors' conscious or unconscious motivations. It would be manifestly impossible, in most death sentencing systems, to pinpoint who was engaging in racial discrimination among the perhaps thousands of actors involved in *1053 sentencing. A pronounced pattern signalling racism's impact would consequently be sufficient. [FN79]

In Warren McCleskey's particular case, the LDF maintained, the Baldus study showed that, when approximately 230 possible independent variables were taken into account, convicted murderers with white victims still had 4.3 times the chance of being sentenced to death than those who had killed blacks. Prosecutors sought death sentences in 70% of the cases in which the victim was white‑‑in contrast to 15% of those in which he or she was black. The LDF concluded that these statistics, when adjusted for the level of aggravation entailed in McCleskey's crime, showed beyond a reasonable doubt that the odds were better than 50% that the deciding factor in the selection of Warren McCleskey for Death Row was the race of his victim. [FN80]

But every bit of this argument, as all of that based on the Equal Protection Clause, rested on the soundness of Baldus' multiple regression analyses. Yet, as Bazemore had recognized, this social science technique was designed precisely to identify patterns in an aggregate of data, when one might ordinarily not be able to discern them, hidden as they were in the complexities of the multivariate decisions of large numbers of people. Perhaps its strongest feature was consequently this ability to sort out and determine the influence of one factor, despite the existence of a large number of others that might also exert independent influences. [FN81]

This having been said, what was the verdict of the multiple regression analysis here? According to McCleskey's counsel, Baldus' study provided overwhelming support for the existence of a massive pattern of racial discrimination in the infliction of Georgia's death sentence‑‑one concentrated especially in just the types of cases in which McCleskey's was included. The case for arbitrariness and capriciousness under the Eighth Amendment, the LDF found, was therefore definitive, so long as the Court accepted Baldus' statistics.

These considerations were hardly lost upon Georgia and its allies. From the outset of McCleskey's federal litigation, Georgia's strategy was to give the post‑Woodson and Ramos phrase, "death is different," [FN82] a *1054 contrary meaning. The statistical analyses employed in the grand and petit jury selection and Title VII cases, it asserted, were valid in those areas. But there was no way in which such approaches to statistics could be applied to capital punishment. In particular, whatever strengths multiple regression analysis might have in a case such as Bazemore, they were overwhelmed in the death sentencing cases by the sheer number, the seemingly limitless kinds, of possible independent variables. [FN83]

For starters, Georgia argued, Baldus' database and methodology were so flawed, as held by the federal district judge who first heard McCleskey's evidence in Atlanta, that there was no way that they could come close to capturing the key nuances of the cases. [FN84]

And this was only compounded, Georgia contended, when Baldus attempted to employ them in the capital punishment area, one so very different from those relating to the jury venire and Title VII cases. The former presented the researcher with only a limited number of variables. A relatively small amount of factors went into answering questions like "Whom should we choose for a venire?" or "Whom should we hire as a police officer?" [FN85]

But when one sought to use multiple regression analysis in capital cases under the Equal Protection Clause, there were "simply too many unique factors relevant to each individual case to allow statistics to be an effective tool in proving intentional discrimination." [FN86] How, for example, could a David Baldus ever effectively account for the availability and credibility of witnesses, or the quality of the scientific evidence or the likelihood of a particular jury's bringing in a favorable verdict‑‑factors central to a prosecutor's decision‑making in potential death cases? [FN87]

And even if discriminatory intent did not have to be proven in Eighth Amendment cases, a proposition Georgia most assuredly rejected, the Baldus study was so besieged by more or less unlimited mitigating and *1055 aggravating factors that it could not possibly be reliably and validly employed to establish a pattern of arbitrary and capricious sentencing. Under such Court rulings as Lockett v. Ohio [FN88] and Eddings v. Oklahoma, [FN89] California added, as an amicus supporting Georgia, there could be thousands, maybe even millions, of bits of information that each unique jury might consider relating to the defendant's character and record and the circumstances of his or her case‑‑all of which could rightly mold its determination. [FN90] Such a multiplicity of inputs, processed by the complex interactions of twelve individual jurors, could hardly be reduced to mere statistical data.

Georgia and its allies finally contended that Baldus could not even filter out of this morass comparable cases for analysis, even through the employment of the most advanced of multiple regression techniques. He claimed, for example, that his statistical approaches scientifically delineated cases of equal levels of aggravation. But, in fact, Georgia and California argued, his categories were no more than computer‑produced artifacts. There was no way to know whether they comported with reality. [FN91]

For example, California asked rhetorically, how many cases were there that actually were "just like Warren McCleskey's"? That is, in how many had a defendant killed a police officer to prevent his own arrest for a daytime armed robbery? Then how many entailed the crime's being committed in a retail store, with the help of accomplices, while customers were being held hostage? Add to that the fact that Baldus also would need to find a defendant who not only murdered the officer, but bragged to two different people about it. There would still be a need to account for a final variable: the convicted murderer in McCleskey presented no mitigating evidence to his sentencing jury, which also had before it three prior convictions on his part for armed robbery. [FN92]

So, Georgia and its amici did everything they could to discredit any connection that McCleskey may have had with cases like Bazemore. To do so meant sure victory. The Equal Protection and Cruel and Unusual Punishment arguments would completely collapse without it. And to fail to do so seemed to mean the opposite. For there appeared to be no way that Georgia could concede that Baldus' conclusions were sound and then *1056 go on successfully to defend its infliction of the death penalty. Capital sentences determined, at least in significant part, by racial discrimination could not be sustained as means toward the objectives of deterrence or retribution. [FN93] Historically, they showed no potential to survive an attack under the Fourteenth Amendment. Stare decisis showed every sign of being able to pulverize death sentences determined, to a large degree, by racially discriminatory actions. [FN94]

No wonder that, while arguing McCleskey before the Supreme Court, an Assistant Attorney General of Georgia, Mary Beth Westmoreland, refused even to intimate that she could ever consider Baldus' approaches acceptable. John Paul Stevens, for example, asked her to imagine "an ideal statistician whom everybody could agree was sound and came to right answers and took account of all variables . . . ." Now suppose, he continued, "after doing all that," that, if the victim were white, the defendant faced an eleven times greater chance of being sentenced to death than if he or she had been black. "Would that," Stevens inquired, "raise a constitutional question in [Westmoreland's] mind?" Would it present a prima facie case of racial discrimination? [FN95]

To this Westmoreland responded that it was Georgia's view "that there is simply no way to take account of all those variables." Stevens said he understood that. He was merely presenting "a hypothetical." He only wanted to know what percentage, in Georgia's view, would be enough to establish a prima facie showing. Westmoreland replied that Georgia could not take such a position. Somewhere there might be a disparity that would be so great as to be like the ones encountered by the Court in Yick Wo v. Hopkins [FN96] and Gomillion v. Lightfoot. [FN97] Her state, however, had no reason even to attempt to assess where such a point would be because the studies proffered by McCleskey were totally inapplicable to capital cases. Try as he might to conjure up "hypotheticals" and "ideal statisticians," Stevens could not budge Westmoreland from the seeming linchpin of her case‑‑that, due to the complexities and uniqueness of capital litigations, multiple regression analysis had no meaningful application to them!

*1057 C. A "Swing" Justice?

Attorneys for anti‑capital punishment organizations like the LDF, John Boger has maintained, tend to fantasize about the outcomes of their pending cases. The odds of losing are so great. The setbacks are so many. The implications for their clients are so critical. Without what might even be described as an "excessive optimism," it might well prove impossible to press on. [FN98]

It was just this sort of faith that left Boger with the strong impression, after the oral arguments, that McCleskey may have won. He had no doubt whatsoever that Justices Brennan and Marshall would vote for reversal. Stevens gave every sign that he would join them. United States Circuit Court of Appeals Judge Harry Blackmun had delivered a well‑known broadside against the use of statistical techniques in death cases. [FN99] But his comments as Justice Blackmun during McCleskey's argumentation, suggested strongly that he too would be supportive.

The LDF thus needed only a single additional Justice. And McCleskey's survival may well have hinged upon his winning the vote of just one of the Justices least likely to agree with him. The task of recruiting Chief Justice Rehnquist, even though he was part of the unanimous Court in Bazemore, seemed hopeless. So, that left White, Powell, O'Connor, and Scalia.

Justice Byron White was, indeed, a long shot. But he had voted in favor of Bazemore. And he had made it clear, in his plurality opinion in Gregg, that he was voting in that case merely to approve its Georgia capital statute prima facie. If data were later to show that its implementation had been arbitrary and capricious, he had made clear, he would support striking it down. [FN100]

With this in mind, the LDF even wrote a part of one of its briefs to respond directly to White's call for an empirical testing. [FN101] Hence, there was at least a hope that White would conclude that McCleskey had responded successfully to his invitation.

Justice Lewis Powell represented yet another possible vote for McCleskey. He too had joined Bazemore. Perhaps maybe even more importantly, he had authored the Court's opinion the previous term in Batson. [FN102] On the negative side, though, Powell tended to be more of a "proceduralist" in capital cases. He did not seem as concerned with *1058 overall patterns and results as he was with seeing to it that death sentencing was guided by proper procedures. Nevertheless, he had been willing to find a prima facie case in Batson on little more than a prosecutor's propensity to use peremptory challenges to remove, in a black defendant's case, a few prospective African‑American jurors. There was thus "some hope" of persuading Powell. [FN103]

Boger's greatest hopes, though, rested with Justices Sandra Day O'Connor and Antonin Scalia. O'Connor was another Bazemore alumna. In addition, her decision‑making tended to reflect a good deal of independence and moderation. On the debits side, she seemed very concerned about the kind of remedy with which the Court would have to grapple in the event of a McCleskey victory. [FN104] Just what was the Court's doctrine supposed to tell Georgia, she queried. Georgia had previously been told that it had a model statute. Now was there some way that it had to execute more black victims' murderers? Or should the Court merely shut down its capital punishment system? Had some of the LDF's possible solutions on that score satisfied her, Boger reasoned, she might well side with McCleskey. [FN105]

But the freshman Justice, Antonin Scalia, seemed the best possibility of all. He, like O'Connor, had been a Reagan appointee. But the Senate had approved Scalia's appointment by a 98‑to‑0 vote‑‑at least a strong hint that, given his highly impressive academic and governmental credentials, he just might demonstrate not only a significant intellectual incisiveness, but a strong bent toward independent and moderate judgments. [FN106]

Dominating Boger's assessment of Scalia, moreover, was a dramatic moment in Mary Beth Westmoreland's presentation during oral arguments‑‑one that had suggested to a startled Boger not only that the freshman Justice had a good grasp of the nature of multiple regression analysis, but that he had also concluded that Baldus had validly, and reliably, applied it to this case.

Westmoreland was attempting to invoke the traditional capital‑state argument of why white‑victim cases so much more frequently ended in death sentences. They were, she asserted, generally qualitatively different from black‑victim ones. The former tended to be characterized by "more factors such as armed robberies, rapes, more property motivated types of crimes." The latter, on the other hand, tended to *1059 arise "in more circumstances involving such things as a family dispute, a barroom quarrel," and other such instances. [FN107]

For the LDF, this contention was little more than an unconfirmed hypothesis. Georgia's experts had not even attempted to test it. Baldus had focused upon it directly, controlling for the very factors to which Westmoreland was referring. And he had found it invalid. [FN108]

"Were those variables not taken account of in the study?," interposed an obviously skeptical Scalia. They were in some of Baldus' analyses, Westmoreland responded. But Georgia had seen no reason not to contend in the lower courts that, across the board, white‑victim cases were systematically more aggravated. Even the fact that Baldus' study had taken into account some 230 variables could not adequately control for it. [FN109]

"I mean," Scalia pressed her, "I can't imagine that one of the variables [Baldus considered] wouldn't be a barroom brawl or [another] an intentional felony." "Those are included in some of the analyses submitted into the District Court," Westmoreland acknowledged, "Yes, Your Honor, those particular ones are." [FN110]

For Boger, this exchange's lesson was as clear as it was exciting. "He really understands the numbers," he remembered then thinking. "I felt good that he actually understood what regression could do," he recalled. "Mindlessly upbeat," he left the oral arguments speculating that, perhaps, McCleskey had been won and that, if this were so, it might well be because of the Court's newest member. [FN111]

D. Scalia's "Reservations"

On the contrary, the LDF failed to win over any of the remaining five Justices. Chief Justice Rehnquist accordingly assigned the majority opinion to Justice Powell, who, about a month later, on November 13th, produced his initial circulation. [FN112] Within a day, the LDF's second greatest hope, Justice O'Connor, asked Powell to join her in his *1060 "excellent opinion." [FN113] Rehnquist and White also signed on a little over a week later. [FN114]

The initial Powell circulate‑‑which changed in only minor ways during its emergence as the Court's opinion‑‑utterly rejected McCleskey's attempt to link the Baldus study to the jury venire and Title VII cases, thereby destroying both his Equal Protection and Cruel and Unusual Punishment arguments.

The nature of the capital sentencing determination, Powell contended, was "fundamentally different from the corresponding elements" in these previous litigations. Each capital jury was "unique in its composition," and the Constitution required that its verdict rest on a consideration "of innumerable factors that [varied] according to the characteristics of the individual defendant and the facts of the particular . . . offense." So, the probative value of statistical analyses would be far less in this context than in those relating to the selection of grand and petit juries and employment discrimination claims. For, in the latter situations, there were simply far less entities whose behavior was called into question and much less "variables relevant to the challenged decisions." [FN115]

Therefore, on the Equal Protection Clause claim, the results of Baldus' multiple regression analyses were "clearly insufficient to support an inference that any of the decision‑makers in McCleskey's case acted with [a] discriminatory purpose." [FN116]

On the Cruel and Unusual Punishment issue, Powell began, statistics at most could "show only a likelihood that a particular factor entered into some decisions." Given human nature and its fallibility, there would always be a risk "of racial prejudice influencing a jury's decision in a criminal case." [FN117]

The task in McCleskey, though, was to determine whether that possibility had become so high that Georgia's system for inflicting capital punishment was "constitutionally unacceptable." But, in this instance, Baldus had, at the most, shown a "discrepancy" that appeared to correlate with race. Given the pitfalls of applying multiple regression analysis to death penalty litigation, though, that finding indicated far *1061 less than the "major systemic defects" that the Court had condemned in Furman. [FN118]

True, Georgia had not conclusively explained it. But, given the overriding importance of permitting the jury the discretion needed for individualized sentencing, and the many constitutional protections provided for the defendant by Georgia's system‑‑in the context of the severe limitations of statistical analysis in capital cases‑‑the Court could not "assume that what is unexplained is invidious." McCleskey, therefore, had failed to prove, through Baldus' study, "a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process." [FN119]

Had the LDF lawyers representing McCleskey seen this initial draft of Powell's opinion, they would have been bitterly disappointed, but hardly surprised, by its reasoning. Once McCleskey's link with the jury venire and Title VII cases was rejected, the outcome was inevitable.

What would have surely shocked them, however, would have been Justice Scalia's memorandum of almost two months later. For, as we have seen previously, it would have been unthinkable to anyone in the case at that time except Scalia‑‑the parties, the amici, the lower court judges, and all of the Court's other members‑‑that a member of the Court would simultaneously accept or concede Baldus' findings and conclusions and vote to permit McCleskey's execution. [FN120]

Surely, Federal District Judge Owen Forrester, who presided over McCleskey's initial, two‑week habeas corpus hearing, never dreamed of taking such a stand. He concluded that his Circuit's decision in the John Spenkelink Case prevented him from even addressing McCleskey's Eighth Amendment claim. [FN121] On the Equal Protection one, he was unwilling even to accept the Baldus analysis as a reliable and valid piece of social science. From that perspective, he could not give credence to the racial disparities it reported. [FN122]

But the United States Court of Appeals for the Eleventh Circuit may have seen the case very differently. In their United States Supreme Court brief supporting McCleskey, for example, the Congressional Black Caucus, the Lawyers' Committee for Civil Rights Under Law, and the National Association for the Advancement of Colored People excoriated it for allegedly embracing a position at least superficially resembling the *1062 one, as we shall see, actually embraced by Scalia in his McCleskey Memorandum.

The Eleventh Circuit, the Congressional Black Caucus et al charged, had focused upon one of Baldus' most important discoveries‑‑that, in a group involving blacks and whites, "all of whose cases are virtually the same, there would be more blacks receiving the death penalty than whites and more murderers of whites receiving the death penalty than murderers of blacks." [FN123]

What had the Eleventh Circuit done with this critical finding? The Congressional Black Caucus found that it had nevertheless interpreted it in such a way as to end up vindicating Georgia's system. The court had concluded that such results were not controlling because Baldus' statistical analyses did not even purport to show that McCleskey, himself, had been sentenced to death because of his race or that of his victim.

The Eleventh Circuit had tended to discount Baldus' observations, according to the Caucus, because they only tended to relate to significant racial disparities in the mid‑aggravation, not high or low, range cases. No criminal justice instrumentality was perfect, its majority had noted. But the systemic racial discrimination in the mid‑range cases appeared to be de minimis, a small price to pay for the system's otherwise commendatory decision‑making.

"That any court in this day and age," the Caucus responded, could "dismiss admittedly valid, comprehensive proof because it 'only' demonstrated that race is an influential factor in capital sentencing is astounding." [FN124] For well over a century, the Court had consistently interpreted the Equal Protection Clause "to prohibit all racial discrimination in the administration of the criminal justice system." No federal judge of which the Caucus was aware had ever, until this time, "seriously suggested that [racial discriminatory practices] at any level of magnitude, if clearly proven, [could] be constitutionally tolerated." [FN125]

But did the Eleventh Circuit opinion by Judge Paul Roney really go as far as the Caucus characterized it? Actually, Roney's position, which had triggered such a condemnation by the Caucus, was nowhere near *1063 the Caucus' depiction of it nor the one that, in fact, was soon to be embraced by Scalia in his McCleskey Memorandum.

Roney had said that Baldus' study showed that Georgia's capital sentencing system was not functioning arbitrarily nor capriciously. Even for Baldus, high‑ aggravation and low‑aggravation cases were largely being processed in ways that suggested that Furman's and Gregg's imperatives were being followed.

And was the massive disparity at the mid‑aggravation range simply to be dismissed as de minimis? Roney's actual meaning, however, was that Baldus' mid‑ range findings, given the weaknesses of multiple regression analysis, could not be accepted as probative.

Then why did the Caucus respond so forcefully to his holding? Perhaps the answer may be found in a curious breakdown in communication between the headnote purporting to summarize this part of Roney's opinion and this opinion's actual commentary. Headnote 21 of McCleskey v. Kemp [FN126] stated that, assuming Baldus' study was accurate in its conclusion that a white victim increased the likelihood of the death penalty by about "20 percent" [FN127] in mid‑range cases, such a disparity did not provide a basis for a system‑wide challenge to Georgia's capital sentencing process. For the system, as a whole, was operating in a rational manner and could not be fairly labeled as arbitrary and capricious. [FN128]

Roney's actual exegesis of this issue, however, read quite differently. "Assuming arguendo," it began, "that the 20% disparity is an accurate figure, it is apparent that [its existence] only in the mid‑range cases, and not in the system as a whole [could not] provide the basis for a systemwide challenge." The latter was operating in a rational manner, Roney contended, and could not be labelled as arbitrary and capricious. Therefore, he concluded, a valid challenge by McCleskey could not be made solely against the mid‑range of cases. [FN129]

So far, it could be argued that the reporter had, indeed, accurately tracked Roney's reasoning. But consider the rest of his commentary: "Baldus did not purport to define the midrange of cases; nor is such definition possible. It is simply not satisfactory to say that the racial *1064 effect operates in 'close cases' and therefore that the death penalty will be set aside in [such determinations]." [FN130]

In reality, therefore, Roney was merely attacking Baldus' contention that multiple regression analysis could permit him to compare and contrast the sentences imposed in largely "equal" white‑ and black‑victim cases! He was simply agreeing with Georgia's contention that Baldus' mid‑aggravation category was little more than an artificial construct. Thus, Roney was only supporting Georgia's argument that this class of cases was nothing more than a statistical product of a computer following a regression model. As such, it lacked probative value.

Viewed from this perspective, then, the Eleventh Circuit's McCleskey holding was hardly endorsing de minimis racial discrimination in the infliction of the death penalty. As with Georgia and its amici, Federal District Judge Owen Forrester, and the later ruling of Justice Lewis Powell, it was again stressing the argument that capital cases were too unique, and contained too many variables, to lend themselves to Baldus' analyses.

Yet, consider what the Congressional Black Caucus might have thought had it known that, via his McCleskey Memorandum, a member of the Supreme Court was contending that a level of racial discrimination in far excess of any defensibly de minimis one would not trigger the protections of the Equal Protection and Eighth Amendment Clauses!

One Eleventh Circuit judge, however, did seem tempted partially to accept the position that, we shall see, Scalia embraced in his McCleskey memo. But Judge Thomas Clark's response to this temptation was radically divergent from Scalia's.

Judge Clark, dissenting from his court's nine‑to‑three rejection of McCleskey's racial discrimination claim, found that the LDF had established its crucial link between Baldus' study and the Supreme Court's grand and petit jury venire cases. Therefore, for Clark, the LDF had, under the Equal Protection Clause, clearly met the burden of proof for a prima facie nullification of McCleskey's sentence. [FN131]

But Clark was troubled, as no doubt Scalia would be later, by this conclusion's long‑term consequences. Why would it not open the door to Baldus‑ type attacks on all aspects of the criminal justice system, non‑capital as well as capital? Georgia and some of its amici had painted une scene horrible depicting this. Should federal judges such as Clark nevertheless play major roles in making it a reality?

"While one has to acknowledge the existence of prejudice in our society," Clark answered, "one cannot and does not accept its application *1065 in certain contexts." [FN132] Nowhere was this "more true than in the administration of justice in capital cases." For nowhere could it be "more sinister and abhorrent than when it [played] a part in the decision to impose society's ultimate sanction, the penalty of death . . . ." [FN133]

But what about the spreading of Baldus‑type attacks to non‑capital cases? Suppose racial discrimination did infect every dimension of American criminal justice. What would prevent the entire system from being invalidated through regression challenges?

Clark's response is dramatic in its contrast to that later proposed by Scalia. "Hypothetically," Clark speculated, suppose a future Baldus revealed that the administration of the American criminal justice system contained a racial bias that randomly reflected itself in 20% of its convictions. Obviously, in such a situation, federal judges could not simply strike down all prosecutions. So ways of ridding the courts of such biases "would be sought." But, absent a rare showing of their direct impact in a specific case, "little else could be done." "The societal imperative of maintaining a criminal justice system to apprehend, punish, and confine perpetrators of serious violations of the law," Clark concluded

would [have to] outweigh the mandate that race or other prejudice not infiltrate the legal process. In other words, [he contended], we would have to accept that we are doing the best that can be done [through institutions] that must be administered by people, with all their conscious and unconscious biases. [FN134]

But such an approach, with its tolerance of a minimal level of racial discrimination in non‑capital cases, could not "sensibly be invoked," and no proven bias at all could be tolerated, in the infliction of capital punishment‑‑a sanction like no other in its finality. Any other conclusion, Clark proclaimed, in stark contrast to what Scalia would conclude later on, was totally foreclosed by the Constitution. [FN135]

From these perspectives, the Scalia McCleskey Memorandum would seem to be very far out of the American legal mainstream.

"I plan to join Lewis' opinion in this case, with two reservations," we have seen Scalia as stating,

I disagree with the argument that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue. And *1066 I do not share the view, implicit in the opinion, that an effect of racial factors upon sentencing, if it could be shown by sufficiently strong statistical evidence, would require reversal. [FN136]

Given Justice Powell's critical emphasis upon what he found was a lack of a link between McCleskey and the Court's jury selection and Title VII cases‑‑ which rested upon his acceptance of the alleged uniqueness of, and the seemingly unlimited number of possible relevant factors in, death cases‑‑it is difficult to find a part of the Powell initial circulates that Scalia could conceivably join!

Justice Powell had concluded his Equal Protection analysis with the requirement that McCleskey show how racial discrimination in his particular case had affected his sentencing. No doubt this requisite proved congenial to Scalia. But Powell had only reached that requirement because he had rejected McCleskey's inferential Equal Protection argument. And that decision had seemingly rested fully upon capital cases' being qualitatively different from jury selection and Title VII ones.

Justice Powell's cruel and unusual punishment holding appeared to rest fundamentally upon the same premise. Powell had not been willing to assume that what was "unexplainable" was "invidious." But why were the disparities reported by Baldus merely inexplicable and not definitive evidence of a powerful systemic racism? For the same reason that McCleskey's Equal Protection challenge had failed. Multiple regression analysis was simply not capable, in a capital punishment context, of revealing all of the significant variables. [FN137]

Hence, there was only one viable attack upon McCleskey's racial discrimination argument throughout the course of this litigation‑‑that the "inferences" of the Baldus study were decisively weakened by the uniqueness and "large number of variables at issue" in capital cases. It had carried the day for Federal District Judge Owen Forrester, the Eleventh Circuit Court of Appeals, and Scalia's four majority colleagues.

The McCleskey Memorandum's rejection of the only basis upon which Baldus' study could seemingly be invalid, therefore, appeared to convey a dramatic message‑‑Baldus had, indeed, discovered the very racist patterns in Georgia's death sentencing that he had claimed.

But, remarkably, Scalia apparently found such a conclusion irrelevant. For the rest of the memo showed that he could not have cared less what Baldus might have found! He did not share the view, implicit in what Powell had said, he continued, "that an effect of racial factors upon sentencing, if it could only be shown by sufficiently strong statistical *1067 evidence, would require reversal." [FN138] So, no matter how powerfully statistics indicated racial discrimination, they would never lead him to overturn a death sentence!

Were there doubts left on this score, they would be completely dispelled by Scalia's next stunning sentence: "Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial [ones] is real, acknowledged in the decisions of this court, and ineradicable, I cannot honestly say that all I need is more proof." [FN139]

It would be difficult to find a comment by a jurist that was more, literally, prejudicial. Even the hypothetically perfect study that Justice Stevens had suggested during his colloquy with Georgia's Assistant Attorney General Westmoreland would not trigger either the Equal Protection or Cruel and Unusual Punishment Clauses. And no such evidence need ever be presented again. Such a statement, in light of the cases we have previously examined, summarily rejected a massive portion of the Court's equal protection and cruel and unusual punishment jurisprudence. Did Scalia even attempt a justification for it?

Apparently, if there were one, it rested upon his concession that systemic racial discrimination was "real." An unconscious "operation of irrational sympathies and antipathies, including racial," was not only endemic to such American capital sentencing; it was also "ineradicable." Indeed, Scalia even observed that prosecutors, anticipating the racist responses of juries, built their case strategies upon such considerations!

But how could Georgia's death sentencing system actually be vindicated by a finding that one of its main driving forces was racial discrimination? Scalia's response seemingly rested on the view that since this racism was "ineradicable," there was no way to remove it from Georgia's capital institutions. So, the situation seemed to be the one posed only speculatively by the Eleventh Circuit's Judge Clark relating to non‑capital cases. [FN140] Put bluntly, the choices were twofold. The Court could either tolerate the systemic racial discrimination, or it could abolish capital punishment entirely.

Whether the McCleskey Justices faced such a clear‑cut dilemma is, as we shall see, debatable. [FN141] Even if such a selection were to be made, however, would the Constitution permit the option of a capital punishment system demonstrably permeated by racism over none at all? *1068 Textually? [FN142] Historically,? [FN143] Regardless of the answers to these questions, though, one conclusion relating to Scalia's position was obvious. The Court's adoption of it would entail an overturning or undermining of a vast array of its cases.

Could the Justices, for example, hold that the Baldus study was accurate‑‑or that its accuracy was even irrelevant‑‑and, then, find Georgia's death sentencing permissible under the Equal Protection Clause? Or to do so, would they not have to discard, or water down beyond recognition, their grand and petit jury selection cases from Strauder v. West Virginia through Castenada v. Partida and Batson v. Kentucky? And where would Bazemore be in the wake of such a holding? Could a valid multiple regression analysis successfully undergird a case against employment discrimination, while one that the Court concluded was equally sound not save an individual from execution?

Furman and Gregg and their offspring demanded that death sentences not be imposed in ways that were arbitrary and capricious. Could any Court (with a straight face) hold that a capital sentencing system that it found fundamentally racially discriminatory met this criterion? And, under these cases, it would be irrelevant whether a systemic operation of irrational racist sympathies and antipathies was conscious or unconscious.

In the coming years, Scalia's opinions would make clear that he did seek the reversal of a large number of the Court's landmark racial discrimination and capital punishment cases. [FN144] Despite his emphasis in legal writings upon the importance of stability in doctrines, [FN145] he did not hesitate to express, and act upon, the view that a Justice had no obligation whatsoever to support a precedent, especially in constitutional areas, that he or she found to be wrongly decided. [FN146]

*1069 Scalia would thus join his colleague, Chief Justice William Rehnquist, in seeking to implement an agenda calling for the elimination of a large number of Warren and Burger Court cases. That such conservative Justices should have undertaken a mission to erase the mistakes that they believed had been made by their liberal colleagues should surprise no one. [FN147]

There is something remarkable about the Scalia Memorandum, however, that places it in a far more extreme category. For it reveals a Justice who is so "result‑oriented" that he is willing not only to go far beyond the bounds of recent cases, but even those of very early ones seemingly at the roots of American jurisprudence. There is, at least, a strong intimation that the only criterion for their being run over or cast aside is that they stand in his way. [FN148]

Perhaps nothing could better reflect this orientation than Scalia's posture toward Strauder v. West Virginia. [FN149] Taylor Strauder, a former slave, came before the Supreme Court in 1879, demonstrating that he had been convicted of murder and sentenced to die by a West Virginia criminal justice system that excluded by statute members of his race from its grand and petit juries. Therefore, he claimed that the entire process by which he had been condemned to die had violated the Equal Protection Clause, thus making his conviction and sentence nullities.

Addressing Strauder's claim, Justice William Strong, writing for a seven‑to‑two majority, sought to determine the intent of the Fourteenth Amendment's framers. "It is well known," Strong observed, in words sounding very much, at least initially, like those of the Scalia Memorandum of over a hundred years later,

*1070 that prejudices often exist against particular classes of the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny persons of those classes the full enjoyment of that protection which others enjoy. [It is just for that reason that prejudice] in a local community is held to be a [justification] for a change of venue. [FN150]

"The framers" of the Equal Protection Clause, Strong recounted, "must have known full well the existence of such prejudice and its likelihood to continue against the manumitted slaves and their race, and that knowledge was, doubtless, a motive that led to the Amendment." For it required "little knowledge of human nature," Strong continued,

to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked upon with jealousy and dislike, that state laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habitual. [FN151]

So the Equal Protection Clause became a part of the Constitution clearly to provide the newly freed blacks with "an immunity from inequality of legal protection . . . for life, liberty or property," and any state that engaged in such racial discrimination was, consequently, "in conflict with the Constitution." [FN152]

West Virginia's exclusion of Negroes from its grand and petit juries was thus a prime example of what this Amendment proscribed. Therefore, Strauder was entitled to a reversal of his conviction.

Granted, the Justice Strong of Strauder confronted a state statute that, on its face, excluded African‑Americans from jury service. In such a context, for the Court to do nothing would indicate, beyond any possible rebuttal, that the Equal Protection Clause was a mere "form of words." [FN153]

Nevertheless, the Scalia of the McCleskey Memorandum was willing to concede that Georgia's capital punishment system was racially discriminatory. In doing so, he was not merely admitting, as had Powell in his majority opinion, that, despite voir dire and other such safeguards, there could never be a guarantee that racial discrimination would always be discovered and eliminated from capital prosecutions. [FN154] He was even recognizing that Georgia's prosecutors could be expected to *1071 count potential juries' racist tendencies against the killers of whites when they prepared their cases! [FN155]

Had Strong, in the wake of Strauder, been faced with such evidence, could he have merely discounted it on the ground that, given that racial discrimination was "ineradicable" from a state's death sentencing, nothing could be done about it? Or would Strong have been compelled by Strauder to strike down a Warren McCleskey's sentence because the Fourteenth Amendment forbade "discrimination because of race or color [in order to] protect an emancipated race, and to [nullify] all possible legal discriminations against those who belong to it"‑‑ noting that the Amendment's "spirit and meaning" had to be construed "liberally" if the Court were to carry out the purposes of its framers? [FN156]

Of course, Justice Scalia did claim, in his McCleskey Memorandum, that the views he expressed in it had been "acknowledged" by the Court's decisions. But he provided no citations. And he did not do so, four years later, when he addressed this issue again, with the luxury of a full dissenting opinion, in Powers v. Ohio. [FN157] Indeed, in Powers, he left no doubt that he would oppose reversing the death sentences of at least some, if not all, convicted murderers condemned by juries selected through practices that the Court had found to be racially discriminatory. [FN158]

Such a conclusion, it might be contended, seemed the product of a conception of the law that was a mirror opposite of the one embraced by Chief Justice Marshall in Marbury v. Madison. [FN159] William Marbury, Marshall found, had a fundamental right to his commission. So, it was axiomatic that the courts of his country afforded him a remedy if the government sought to deny it to him. [FN160]

The McCleskey Memorandum, however, seemed to be premised upon the conclusion that systemic racial discrimination in Georgia's capital sentencing was "ineradicable." Then the only way to eliminate it was to abolish the entire system. But such a price was obviously too high, especially primarily as a means of protecting cold‑blooded killers. [FN161] So there were no viable remedies for the Warren McCleskeys. That *1072 realization apparently trumped any rights they may have had against such racially discriminatory sentencing!

How far did such a view diverge from the legal mainstream? Consider another instance in which a Justice told an African‑American arguing that he was the victim of a state's racial discrimination that there was no remedy for him, Plessy v. Ferguson. [FN162] Perhaps not surprisingly, there are dramatic parallels between Henry Brown's reasoning in Plessy and Antonin Scalia's in his McCleskey Memorandum. Bizarrely, however, Brown's Equal Protection perspective seems far closer than Scalia's to today's capital punishment doctrines!

Plessy, of course, embodied, through Brown's holding, an approach not dissimilar to Scalia's tolerance of a state's systematic imposition of racially discriminatory actions against its black citizens. Homer Adolph Plessy had invoked both the Thirteenth and Fourteenth Amendments against the Louisiana "Jim Crow" law whose enforcement compelled him, while 7/8's white, to ride in the Negro railroad car. Surely, he contended, the undeniable text and history of these two provisions left no doubt that de jure segregation was unconstitutional. [FN163]

But the Court in Plessy, brushing such considerations aside, proclaimed in words sounding very much like those that would be expressed almost a century later in Scalia's McCleskey Memorandum, that the Constitution was "powerless to eradicate racial instincts or to abolish distinctions based upon physical differences . . . ." Any attempt on the Court's part to do so would "only result in accentuating the difficulties of the present situation." [FN164]

Of course, Plessy, like McCleskey, was hardly championing the absurdity that the Fourteenth Amendment forbade racial discrimination in all aspects of American society. Each, on the contrary, was maintaining that it extirpated state action that directly inflicted racial discrimination upon African‑Americans.

Brown's and Scalia's respective responses to such claims thus seemed to have a great deal in common. Justice Brown, Richard Kluger has suggested, replied to Plessy that "since laws cannot affect how men think about and react to their racial differences, there can be no harm in [ones] that emphasize [them]." With similar twisted reasoning, Brown, according to Kluger, seemed to be saying that "so long as all men are proclaimed by statute to be treated equally by the state, they indeed are *1073 . . . ." [FN165] How close, it might be asked, would these characterizations, come to describing Scalia's McCleskey Memorandum?

Yet, remarkably, the Brown of Plessy seems closer to today's Equal Protection doctrine in criminal cases than the Scalia revealed by his McCleskey memo. For Brown, at least, purported not to be abandoning Strauder! Seizing upon a distinction the Justices had already employed in the Civil Rights Cases, [FN166] Brown contended that the objective of the Fourteenth Amendment had undoubtedly been "to enforce the absolute equality of the two races before the law . . . ." But, in the nature of things, he continued, "it could not have been intended to abolish distinctions based upon color," that is "to enforce social, as distinguished from political equality, or [the] commingling of the races upon terms unsatisfactory to either." [FN167]

But, as the Court in Plessy made unmistakably clear, the "political rights" of African‑Americans, their "absolute equality . . . before the law," encompassed their right not to be sentenced to death based upon the race of their victims. For Strauder was invoked as a prime example of the kinds of "political rights" to which Brown was referring. If it forbade a state's explicitly excluding blacks from its grand and petit juries, then a fortiori, it also proscribed legally demonstrated racially discriminatory death sentencing.

It is at least highly probable that if a Henry Brown had had before him evidence comparable to the Baldus study in 1896, and had believed that it was probative, as apparently had Scalia in 1987, he would have been compelled, even by his approach to Plessy, not to affirm but to vitiate, Warren McCleskey's death sentence!

This would be in spite of the radically different political contexts within which these Justices were working. As Kluger has observed, Plessy was the coup de grace of a Court campaign more or less utterly to nullify the Civil War Amendments as protections of the civil rights and liberties of African‑ Americans in the postbellum years. [FN168] Scarcely had their ink dried before the Court was emasculating them. By the 1870s and 1880s, the nation was already rapidly abandoning the newly "emancipated" Negro. And the Justices, with little resistance, permitted the Southern white power structure again to reduce him or her to servility. Indeed, with the one dazzling exception of Strauder, it appeared to be leading the way. So, Henry Brown's main policy stance *1074 in Plessy was hardly out of the mainstream; that glorious distinction went to his tormented colleague, John Marshall Harlan I!

The Antonin Scalia of the McCleskey Memorandum, however, hardly experienced such pressures. However much he may have been personally convinced that the post‑World War II civil rights revolution had gone too far; or that the Court's rulings, in recent years, had become too "activist" or "permissive"; or that violent criminals were destroying much of what was decent in America; he hardly found himself being swept along by such a massive tide against the recognition of the civil rights or liberties of African‑Americans.

Remarkably, therefore, he was apparently gratuitously veering far to the right of even the Plessy Justices when advocating the affirmance of Warren McCleskey's death sentence in his McCleskey Memorandum.

III. THE MEMO AS HISTORY

A. Overkilling A Paragraph?

Justice Scalia commented a few years ago that he was amazed by how minutely his opinions are dissected by the legal community. As a member of the United States Circuit Court of Appeals for the District of Columbia Circuit, he had authored cases that attained a relatively high level of visibility. But that experience was not remotely comparable to that of the Supreme Court years. He sometimes wondered if every line he wrote would be analyzed by someone ad nauseum. Nothing he uttered, no matter how seemingly trivial at the time, could be guaranteed not to come back to haunt him! [FN169]

One can only wonder, therefore, about his possible reaction to this sort of an analysis, with its exegesis of not even an opinion or a set of votes but a one‑paragraph memorandum. Yet, Scalia has argued that Americans are entitled to know the history of how the Court's cases came to be decided. [FN170] And it is not the student of the Court's role to engage in what Arthur Miller once called "squid jurisprudence"‑‑to hide from the outside world, through a cloud of ink, anything about the Court that he or she thinks might prove unfavorable. [FN171]

But the Justices ordinarily speak through their opinions. And they are consequently conventionally evaluated in terms of such full‑dress *1075 attempts to develop and defend their positions. From this perspective, Justice Scalia did not have his full "day in court" in the course of this analysis. But he did have two, if not far more, opportunities to have it. First, his McCleskey Memorandum said that he expected to write separately. But he never did. [FN172] Second, he was invited specifically to respond to the main points of this article. [FN173] But no response has followed.

Perhaps, had he responded, he would have contended that his McCleskey Memorandum had never been intended to be taken so seriously. It merely represented some brainstorming. Observers of the Court have been asked, in recent years, even to dismiss the main points of law professors', major articles as products of a mere playful gadflying. So, surely, we should discount a single paragraph jotted down by a Justice wrestling with a case that he found especially vexing.

The difficulty with this argument, in this context, though, is that there is nothing about Scalia's McCleskey Memorandum that suggests that he ever intended for it to be taken lightly. Even before his Supreme Court appointment, Scalia was known for his precise writing. [FN174] Had he wished to convey to his fellow Justices that he was merely toying with some ideas, he could have easily found the words to do so. Yet, as we have seen repeatedly in this analysis, he phrased his memo as if it were expressing the convictions of a lifetime. It was devoid of conditionals. Even if he had meant it as a trial balloon, it would only have been so as a test of just how far to the right his colleagues could be tempted or cajoled.

Whatever the motivations behind it, the McCleskey Memorandum is a significant historical benchmark. As a product of Justice Scalia's very first term, it provides a vivid behind‑the‑scenes perspective on where he began his tenure in relation to several key issues.

B. His Relationships With His Colleagues

Several years after McCleskey, two images of Scalia, as the colleague, have emerged. The positive one depicts him as fun‑loving and witty, ebullient and engaging, an individual whose charm borders on the *1076 irresistible. He can come at his opponents' arguments without quarter, so goes this characterization, but leave no doubt that he means nothing personal. Anything but passive, "Nino" can be expected to be happily at the vortex of a great many of the Court's major controversies‑‑excitedly, but good‑naturedly, exchanging insights and fire with his colleagues. [FN175]

The far less flattering one, however, suggests a much different personality. According to this interpretation, Scalia's dominant trait is arrogance. His intellectually bullying attitude, augmented by his tactlessness and insensitivity, so goes this version, has frequently alienated fellow Justices. [FN176]

Which rendition will ultimately prevail is yet to be seen. But it is unlikely that the McCleskey Memorandum will prove irrelevant to this issue. As we have seen, the content of Scalia's memo could easily be viewed as radical. His authoring it, in addition, as a freshman Justice might well have made it appear presumptuous.

There are other ways in which the McCleskey Memorandum might also serve as a datum for the less favorable view of Scalia. Scalia's intellectual vigor has, at times, been compared to that of Felix Frankfurter. [FN177] Yet, it is almost inconceivable that a Justice Frankfurter would have conducted himself as Scalia had in McCleskey.

In particular, it is most unlikely that Frankfurter would have ever authored a memo cavalierly calling, within the compass of a single paragraph, for the cashiering of a major dimension of his Court's precedents. And it is almost inconceivable that, having done so, he would have gone on silently to drop the whole issue, merely concurring in the opinion of another Justice who had reached more or less opposite conclusions. Frankfurter, no doubt, would have concluded that he owed his fellow Justices, as a mere act of respect, a full explanation of how he had undergone such major changes in his positions.

Scalia had said, in his McCleskey Memorandum, that he could not "honestly" join Powell in saying that all he needed to strike down McCleskey's death sentence‑‑in the wake of Baldus' study‑‑was more proof. Yet, a few weeks later, he joined Powell's endorsement of exactly this stand. Was he therefore "dishonestly" doing so? Such actions, *1077 without a full statement to his colleagues of what intellectually justified them, were hardly impressive. [FN178]

Finally, Scalia's McCleskey Memorandum constituted a remarkable exercise in insensitivity to what it must have symbolized for Thurgood Marshall. Marshall had spent his professional life attempting to document the very kinds of racist practices that Scalia was acknowledging, believing that, were he to do so successfully, they would clearly be seen as constitutionally proscribed.

But here was the Court's newest Justice simply trivializing their importance by saying, in a single‑paragraph memo, that they were merely an unavoidable and legally unassailable, part of life for African‑Americans. Apparently for Scalia, the capital punishment system's valuing a white life significantly above a black one did not implicate any constitutional provisions. And the issue was not even sufficiently significant for him to address it through a more comprehensive follow‑up memorandum. [FN179]

C. The Wellsprings of His Jurisprudence

A similar clash of views has developed over the wellsprings of Justice Scalia's jurisprudence. Is he a genuine "restraintist" or just a conservative "activist"? What truly motivates him when he decides his cases and writes his opinions?

*1078 Commentators on one side, led by Scalia himself, have depicted him as both a textualist and an originalist. Whatever the policy implications of his constitutional determinations, they have argued, he has sought resolutely to be governed, not by his personal ideological proclivities, but by the intent of the Framers‑‑as demonstrated by their actual words and history. [FN180]

Opponents of this view, however, see Scalia as largely a Reagan ideologue. From this viewpoint, he employs textualist and originalist approaches, for the most part, only when they support his attainment of his policy objectives. [FN181]

The Antonin Scalia revealed by the McCleskey Memorandum, in light of this controversy, is unfortunately reminiscent of the Wizard of Oz. We apparently should pay no attention to the man behind the curtain! He shows no concern whatsoever for the Equal Protection Clause's text or history, as they were so clearly illuminated by pro‑McCleskey groups like the Legal Defense Fund, [FN182] later to be reflected in the successive drafts, in particular, of Justice Blackmun's dissenting opinion. [FN183] One *1079 would have thought that he would have had no choice but to be concerned. The arguments McCleskey mustered along these lines would seem, at least prima facie, to be devastating to Scalia's conclusions. Yet, suggesting that he was overwhelmingly concerned with "result‑oriented" considerations, Scalia simply ignored them. [FN184]

D. His Sensitivity to the Rights of African‑Americans

Justice Scalia has frequently been accused of a marked insensitivity to the rights of African‑Americans. [FN185] In the context of such charges, the McCleskey Memorandum is revealing. Suppose we were to assume, arguendo, that Scalia did conclude, before he joined Powell's opinion, that he was wrong in his initial assessment of the Baldus study. Suppose, therefore, he no longer believed that Baldus may well have validly demonstrated systematic racial discrimination in Georgia's infliction of the death penalty.

His paragraph nevertheless said, however, that systemic racially discriminatory capital sentencing was both "real" and "ineradicable." So, his overall assessment would still contradict Powell's stand that, until such a systematic racism could be proven, Powell would not acknowledge its existence.

In light of these opposite views on the parts of Scalia and Powell on whether racial discrimination should be seen as playing a significant role in capital punishment decision‑making, we might marvel at their positions in other death cases. Powell, who refused to recognize the existence of such racially discriminatory patterns, seemingly did everything he could in the Booth Victim Impact Case [FN186] to ameliorate *1080 any effects racial discrimination might have had on capital sentencing. Yet, Scalia, who told his colleagues explicitly in McCleskey that such racism was so pervasive that prosecutors even calculated it in when they formulated their strategies, opposed Powell's attempted safeguards right down the line. [FN187]

And what of Scalia's recent declaration in Powers v. Ohio [FN188] that he would not overturn a killer's death sentence on the basis that racially discriminatory acts had infected the selection of his or her jury? Powell's opinion in Batson was designed to protect the rights of black Americans. Yet, Powers, who was white, claimed that it governed his prosecution. Scalia was consequently exasperated that the Court ruled in Powers' favor. Yet another murderer was availing himself of a federal remedy, this time one not even developed for persons of his pigmentation. Such a dissatisfaction on his part might well explain why he would take such an extreme stand. But a knowledge of his McCleskey Memorandum cuts against this theory. For that document shows clearly that, from his very first day on the Court, Scalia has sought to undermine Strauder's remedy of reversal in such cases‑‑the only one of any use whatsoever to Death Row inmates.

But is it inconceivable that the Scalia who has opposed protections against alleged racial discrimination in the Powers and Victim Impact Cases has come to believe, through or since McCleskey, that racism no longer systematically impacts upon capital sentencing? Could he not have concluded, therefore, relatively recently, that the protections allegedly created by Gregg and its progeny are finally working? When provided with a splendid recent opportunity to say so, one which he himself created, however, he chose silence.

The occasion was the dramatic exchange between Justices Blackmun and Scalia in Callins v. Collins. [FN189] Blackmun was proclaiming that he would henceforth vote to overturn all death sentences. After nearly twenty years of trying to make Gregg work, he was conceding his and his Court's failure. He finally had to join former Justices William Brennan and Thurgood Marshall in their conclusion that there was no way in which capital punishment could be inflicted with a constitutional level of fairness. Haunting major parts of Blackmun's opinion, not surprisingly, were citations to McCleskey. It had demonstrated for him *1081 that the imposition of the death penalty in America was frequently racially discriminatory. [FN190]

Callins' case involved only a stay proceeding. And no other Justice was moved to address Blackmun's mea culpa except Scalia. Scalia's response to Blackmun was premised upon recourses to textualism and originalism clearly lacking in his previous McCleskey Memorandum. The Fifth Amendment's Due Process and Indictment Clauses, he observed, showed that the Framers had not remotely viewed executions as cruel and unusual punishment. [FN191]

The rest of Scalia's retort rested largely upon his contention that contemporary American society had every reason to be outraged at the coldblooded killers who first preyed upon its innocent citizens and then abused its judicial processes, saying nothing about the Court's confrontation with the racial discrimination issue in McCleskey. Here was a golden opportunity for Scalia clearly to say that it had been resolved: "My Brother Blackmun is wrong in his argument that the McCleskey Case revealed systemic racism in Georgia's death sentencing. This Court explicitly rejected this assertion ...." But there was nothing.

How might these considerations cast light on the broad sweep of Justice Scalia's Equal Protection decision‑making? Scalia is on record as endorsing an expansive scope for the Equal Protection Clause. [FN192] Yet, this posture seems to be contradicted substantially by his textually and historically indefensibly constricted conception of that Clause, and its accompanying remedies, in his McCleskey Memorandum.

Perhaps the reason for this seeming anomally rests at least partially upon who is using the Clause. Scalia has left no doubt that he will support the Clause's powerful symbolisms being wielded by whites challenging affirmative action programs. [FN193] But his endorsement of its utilization by African‑ Americans, its initial intended beneficiaries, has *1082 been far less generous. [FN194] To what extent, we might consequently ask, in the wake of instances like McCleskey, does Scalia reserve the first Justice Harlan's assertion that the Constitution is "color‑blind" largely for Caucasians contending, in Justice Bradley's phrase in the Civil Rights Cases, that blacks have unconstitutionally become "the special favorites of the laws"? [FN195]

E. His Role in McCleskey

The Scalia Memorandum can also tell us much about McCleskey itself‑‑a case which has since been dramatically renounced by its own author, Lewis Powell, [FN196] and which at least some commentators have argued, may well go down in history as another Plessy. [FN197]

Considering McCleskey's premises and conclusions, perhaps American institutions such as the Court are, as Lani Guinier recently contended, presently in a state of denial about the extent to which racism permeates our political system. [FN198] And maybe our present racial relations are even more destructive and dangerous than even she has argued. Americans of the early 1990s have seen an upsurge of racist hatred and depredations directed by whites against blacks and vice versa, seemingly unprecedented in recent decades. [FN199]

In this context, McCleskey would seem highly destructive. If Judge Brent McKnight is correct in endorsing, in this symposium, Owen Fiss' assertion that courts exist to give meaning to our social values, [FN200] then McCleskey did nothing to address, forthrightly, the role racial discrimination may actually have played in Georgia's infliction of the death penalty. Dismissing Baldus' conclusions, although it had previously claimed to have conceded the "validity" of his findings, the McCleskey *1083 majority skirted away from the issue of the extent to which racism really does infect America's sentencing processes. [FN201]

It is of course understandable that what has been described elsewhere as "the thin ice syndrome" [FN202] may have deeply troubled Justice Powell in McCleskey. Despite the Legal Defense Fund's and pro‑McCleskey amici's arguments to the contrary, [FN203] Baldus' study was sufficiently on the research frontier to raise important questions relating to its validity and reliability. [FN204]

But the Court in McCleskey shirked its responsibility to answer them by refusing to explain why, from a legitimate social science perspective, Baldus' statistics were not at least as valid and reliable as those accepted by the Court in Bazemore and the grand and petit jury cases. [FN205]

Yet, no matter how bad McCleskey may have been, it would be even more worthy of condemnation if Scalia had merely placed his signature upon Powell's opinion, while holding to the views that he had expressed in his initial memorandum. In such a situation, the Court would have approved McCleskey's death sentence at the same time that a majority of its members (including the four dissenters and Scalia) had concluded that the race of his victim, more likely than not, had determined that he should die.

Given what we have previously seen as Scalia's recent silence on McCleskey in Callins, such a possibility is not inconceivable. And this speculation, moreover, is only fortified by a curious statement made by Justice Marshall during the final hours of the "death watch" for Warren McCleskey.

The date was September 24, 1991. McCleskey's application for an emergency stay of execution had just been rejected by the Court, with Justices Marshall, Blackmun, and Stevens dissenting. In 1986, Marshall's dissent contended, McCleskey had "presented uncontroverted evidence that Georgia murder defendants with white victims were more than four times as likely to receive the death sentence" than those with *1084 African‑American ones. Yet, despite such "clear and convincing" data, he contended, and in the face of a showing of an irrationality in sentencing that had been consistently condemned by the Court's previous Eighth Amendment cases, a majority of its Justices "somehow" rejected McCleskey's claim and upheld the constitutionality of Georgia's death penalty. [FN206]

Why "somehow"? Why would Marshall, in one of his last pronouncements from the Court, use such a curious word? Ordinarily, would not Powell's opinion for the Court have given the reasons for the majority's rejection of McCleskey's contentions? Or was an anguished Marshall giving vent to his realization that, for five members of the Court, including Scalia, Baldus' conclusions were "uncontroverted," and that, because of Scalia's vote, Warren McCleskey was going to his death anyway?

F. Unacceptable Decision‑Making

The Scalia Memorandum, as we have seen, seems to turn Chief Justice Marshall's reasoning in Marbury upside down. Racial discrimination in Georgia's infliction of the death penalty is "ineradicable." So, McCleskey's only possible remedy would be the invalidation of the entire system that imposes it. And were this to happen, what would stop the LDF and similar groups from employing multiple regression analyses to attack non‑capital sentencing? [FN207] In the face of such a "foot‑in‑the‑door spectre," [FN208] Scalia would apparently opt for no remedies at all. [FN209]

Whether the Court was, in fact, confronted with such a blunt dichotomy was hardly a foregone conclusion. Knowing full well that the Justices were acutely concerned with the implications, for the entire criminal justice system, of a McCleskey victory, the LDF had argued that there were a number of steps, short of abolition, that might well purge racial discrimination from Georgia's infliction of death sentences.

*1085 Georgia permitted its prosecutors and jurors more discretion in capital sentencing than many other jurisdictions. More guidelines for these participants, the LDF asserted, might well leave less room for racist elements to influence their decisions. Perhaps more importantly, Georgia's very low and extremely high aggravation cases, as we have seen, did not signal racially discriminatory patterns. In the great majority of the former, death sentences were not imposed, regardless of the races of the perpetrators and the victims. In the latter, they were almost always obtained, again with the races of the killer and of the victim irrelevant. Consequently, the LDF maintained, Georgia might well draft its capital statutes so that death was only mandated for such high‑aggravation cases. [FN210]

These suggestions, however, were given short shrift by the McCleskey majority, with Justice Powell's graphically reciting what he saw as the serious pitfalls for the entire criminal justice system if his Court were to strike down McCleskey's death sentence.

They were not even remotely addressed by the Scalia Memorandum. Scalia noted in that memo that he would not begin his McCleskey concurrence until he had read "the dissent." But there were ultimately three dissents in McCleskey. Which one did he mean? If fact, the only one circulated to him before, on February 27th, he made his decision to join Powell, was Justice Brennan's. And it was the only one of the three that did not focus, at some length, on the measures Georgia might take, short of abolishing its death penalty, adequately to purge its capital sentencing of racism. [FN211]

The odds are excellent that a reading of Justices Blackmun's and Steven's first circulations would not have persuaded Justice Scalia that remedies short of abolition could be viably provided to the Warren McCleskeys. There was little in them that the LDF had not already presented. And he had always had the option later to join these dissenters to form a new majority, if they had been able to persuade him to their side.

But, most assuredly, it also would have been most difficult for him to have announced to his fellow Justices, in such a situation, that, yet again, he had changed his mind.

This episode thus suggests a serious pitfall, in addition to those already tellingly described by Owen Fiss [FN212] and Randall Kennedy, [FN213] *1086 in an approach whereby a Justice seeks to ascertain the extent of a possible right on the basis of what might be its plausible remedies. With such a constitutional protection as yet inchoate, a valid consideration of each means that might be available to vindicate it might itself be foreclosed.

And in addition, such a balancing off of a potential liberty against the costs of its possible remedy might make it far too easy for the Justices to minimize the weight that should be given to the rights of persons before them, such as capital defendants, whom they deem unworthy. As Scalia since McCleskey has made very clear, he does not consider the Death Row inmates seeking redress from his Court even worthy of a great many of their present remedies. [FN214]

Yet, assessing the moral value of a litigant, as a major factor in the ascertainment of his or her rights under the Constitution, is especially dangerous. It is easy now, for example, to condemn Plessy v. Ferguson. Its Pollyanna quality, in the face of the monumental indecencies and degradations of Jim Crowism, seems obvious. But it was hardly so to the Plessy majority, despite the most determined and imaginative efforts of Plessy's lawyers to make it so.

Albion Tourgee, the apparent progenitor, via his brief for Plessy, of "the Constitution is color‑blind" aphorism, [FN215] called upon the Justices to imagine that, "by some mysterious dispensation of providence," they had awakened one morning to find that they had "a black skin and curly hair‑‑two obvious and controlling indications of race"‑‑and that they were consequently later ordered, while traveling by rail in a state like Louisiana, to go to "the 'Jim Crow Car' . . . ." He could well conceive of the "indignation, the protests, the assertion of pure Caucasian ancestry" that would follow, as they felt the full force of being viewed as racially, and, hence, morally, inferior. "What humiliation, what rage would then fill the judicial mind," he continued:

How would the resources of language not be taxed in objurgation! Why would this sentiment prevail in [their] minds? Simply because [they] would then feel and know that such assortment of citizens on the line of race was discrimination intended to humiliate and degrade the former subject and dependent class‑‑an attempt . . . "tending to reduce the colored people of the country to the condition of a subject race." [FN216]

*1087 Americans today who might not hesitate to join a Plessy in his outrage against Jim Crowism might have close to no patience with an appeal alleging rights on the part of a Warren McCleskey. The terror of the violent crime seemingly sweeping the country is too great. And there seems to be no comparability whatsoever between the moral worth of a cold‑blooded killer like a Warren McCleskey and that of an Officer Frank Schlatt, risking and losing his life while responding to a silent alarm in an Atlanta furniture store. So, it is tempting to conclude, as Justice Brennan so eloquently reminded us in his dissent from McCleskey, "that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die." [FN217]

Yet, on September 24, 1991, while one black man attempted to prepare himself for what turned out to be his two trips in the same day to the electric chair, [FN218] another, at the end of his career on the Supreme Court, sought to articulate his grasp of the symbolism of the former's execution. McCleskey, for Thurgood Marshall, was only partially about the alleged rights of white‑victim killers. It was far more about those of the present‑day Homer Adolph Plessys. It was concerned with the shockingly large percentage of average African‑ Americans who became homicide victims. It symbolized how, in so many ways, the criminal justice system dealt unjustly with minorities, in their roles both as defendants and victims. For it showed, he concluded, that even American society's supreme penal sanction could still not be administered fairly‑‑ despite all of the judicial attention that had been devoted to it‑‑because states like Georgia continued significantly to value the lives of their white citizens over those of their black ones. [FN219]

From such a perspective, the concerns of Chief Justice Rehnquist relating to the opening of the Marshall Papers may have been misplaced. The Court's credibility will unlikely be shaken by the publication of documents like the McCleskey Memorandum. [FN220] But its reputation, *1088 and indeed, that of our nation as a whole, [FN221] will be damaged substantially, and rightly so, by holdings like Plessy and by its adoption of the far too similar ideology reflected in Justice Scalia's McCleskey Memorandum.

The disclosure of Scalia's single paragraph may therefore make its most important historical contribution to the American public, in general, and the country's jurists and attorneys, in particular, by revealing dramatically and precisely how our Court and our society should never approach the issues raised by the interplay among racism, rights, and remedies in the infliction of the death penalty.

FNa1. Professor of Political Science, Department of Political Science, The University of North Carolina at Charlotte. Arizona State University (B.A., 1964); The University of Virginia (M.A., 1965; Ph. D., 1973).

FN1. JOHN GRISHAM, A TIME TO KILL 79 (1989).

FN2. David A. Kaplan, A Legacy of Strife, NEWSWEEK, June 7, 1993, at 68.

FN3. David J. Garrow, There's Nothing to Fear in Those Papers, WASHINGTON POST NAT'L WEEKLY EDITION, May 31‑June 6, 1993, at 29.

FN4. Id.

FN5. Id.

FN6. Aaron Epstein, Papers Turn Spotlight on Secretive Court, CHARLOTTE OBSERVER, May 29, 1993, at 7A.

FN7. Benjamin Weiser & Joan Biskupic, Marshall's Papers are Window into High Court, CHARLOTTE OBSERVER, May 23, 1993, at 2A.

FN8. Garrow, supra note 3, at 29.

FN9. Epstein, supra note 6, at 7A.

FN10. Kaplan, supra note 2, at 68.

FN11. Epstein, supra note 6, at 7A.

FN12. Garrow, supra note 3, at 29.

FN13. McGeorge Bundy, What Justice Marshall Did, WASHINGTON POST NAT'L WEEKLY EDITION, June 7‑13, 1993, at 28.

FN14. Jeffrey Rosen, for example, has contended that "[f]ar from showing a scholarly Court 'communicating in utmost sincerity,' as The New York Times put it, the papers reveal that the Justices rarely communicate in writing about the substance of their work." In the most dramatic cases of the Rehnquist era, Rosen argues, they "are content to join opinions or dissents without requesting any substantive changes at all." See Jeffrey Rosen, Court Marshall, NEW REPUBLIC, June 21, 1993, at 14.

FN15. 481 U.S. 279 (1987).

FN16. Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388, 1399‑1400 (1990). See, in addition, the assessment of this study presented in Brief Amici Curiae for Dr. Franklin M. Fisher, Dr. Richard C. Lempert, Dr. Peter W. Sperlich, Dr. Marvin E. Wolfgang, Professor Hans Zeisel, and Professor Franklin E. Zimring in Support of Petitioner Warren McCleskey, No. 84‑6811‑‑McCleskey v. Kemp. Washington, D.C.: Supreme Court of the United States, October Term, 1985, Aug. 29, 1986.

FN17. Memorandum to the Conference from Justice Antonin Scalia in No. 84‑6811‑‑ McCleskey v. Kemp of Jan. 6, 1987. McCleskey v. Kemp File, THURGOOD MARSHALL PAPERS, The Library of Congress, Washington, D.C.

FN18. See, e.g., DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY (1990).

FN19. Letter to Dennis D. Dorin, Professor of Political Science, The University of North Carolina at Charlotte from David C. Baldus, Professor of Law, College of Law, The University of Iowa (Sept. 15, 1993).

FN20. WEBSTER'S NEW WORLD DICTIONARY (2d College ed. 1982).

FN21. The terms, "McCleskey Memorandum" or "Scalia Memorandum" will be used in this Article to refer to the memorandum cited at supra note 17.

FN22. 478 U.S. 385 (1986).

FN23. These include such "death is different" cases as California v. Ramos, 463 U.S. 992 (1983).

FN24. 408 U.S. 238 (1972).

FN25. 428 U.S. 153 (1976).

FN26. 428 U.S. 280 (1976).

FN27. See, e.g., Steven G. Gey, Justice Scalia's Death Penalty, 20 FLA. ST. U. L. REV. 67, 89‑132 (1992) for an account of Scalia's later wholesale assault on these cases.

FN28. 100 U.S. 303 (1880).

FN29. 163 U.S. 537 (1896).

FN30. Without stating any reasons for the abandonment of his previous positions, Scalia wrote Powell on February 27, 1987, that he would "be pleased to join" Powell's opinion. See memorandum from Justice Scalia to Justice Powell in No. 84‑6811 ‑‑ McCleskey v. Kemp of Feb. 27, 1987. McCleskey v. Kemp File, THE THURGOOD MARSHALL PAPERS, The Library of Congress, Washington, D.C.

FN31. Thea F. Rubin & Albert P. Melone, Justice Antonin Scalia: A First‑Year Freshman Effect? 72 JUDICATURE 98 (1988).

FN32. Id. at 101.

FN33. For instances of possible important influences in Scalia's pre‑Court career, see Ruth Marcus & Susan Schmidt, Politics, Personality and the Law, WASHINGTON POST NAT'L WEEKLY EDITION, July 7, 1986, at 6‑7 and George Kannar, The Constitutional Catechism of Antonin Scalia, 99 YALE L.J. 1297 (1990).

FN34. Rubin & Melone, supra note 31, at 99.

FN35. Id.

FN36. Michael P. King, Justice Antonin Scalia: The First Term on the Supreme Court‑‑ 1986‑1987, 20 RUTGERS L.J. 1, 5 (1988). See also DAVID G. SAVAGE, TURNING RIGHT ‑‑ THE MAKING OF THE REHNQUIST COURT 119 (1992).

FN37. Rosen, supra note 14, at 15.

FN38. See supra note 30.

FN39. Personal interview with the author, Chancellor's Residence, The University of North Carolina at Charlotte, Charlotte, North Carolina, Oct. 16, 1989.

FN40. Not a single law review treatment of McCleskey has ever come close to embracing the position on the Equal Protection and Cruel and Unusual Punishment Clauses expounded by Scalia in his McCleskey Memorandum. See the scores of articles listed thus far in THE INDEX TO LEGAL PERIODICALS.

FN41. See supra note 17.

FN42. McCleskey did not concede, throughout the long campaign to keep him from the death penalty, that he had been the "triggerman" who had killed Officer Schlatt. However, just before his execution, he asked Schlatt's family for its forgiveness. See Elliot Minor, Man Loses Last Appeals, Is Executed, CHARLOTTE OBSERVER, Sept. 26, 1991, at 11A.

FN43. Petitioner's Post‑Hearing Memorandum of Law in Support of His Claims of Arbitrariness and Racial Discrimination in McCleskey v. Zant, No C81‑23434A. Atlanta, GA: U.S. District Court for the Northern District, Atlanta Division, Sept. 26, 1983, at 64.

FN44. See supra note 18. Baldus' co‑investigators (and main methodologists) on this project were George Woodworth and Charles Pulaski.

FN45. For an analysis of their entire study, see supra note 16.

FN46. 428 U.S. 153 (1976).

FN47. This argument is frequently made when groups like the LDF attempt to convince courts to apply social science studies to capital punishment issues. See, e.g., Dennis D. Dorin, Two Different Worlds: Criminologists, Justices and Racial Discrimination in the Imposition of Capital Punishment in Rape Cases, 72 J. CRIM. L. & CRIMINOLOGY, 1667, 1685‑86 (1981).

FN48. See supra note 16.

FN49. The Eighth Amendment, at least since Robinson v. California, 370 U.S. 660 (1962), of course, has applied to the states through the Fourteenth Amendment's Due Process Clause.

FN50. 462 U.S. 862, 885 (1983).

FN51. Oral Argument of John C. Boger in Behalf of Petitioner Warren McCleskey in McCleskey v. Kemp, 84‑6811 (transcript) Washington, D.C.: The Supreme Court of the United States, October Term, 1986, Oct. 15, 1986, at 3.

FN52. Id.

FN53. Id. at 4.

FN54. See supra note 43, at 72.

FN55. 443 U.S. 545, 556 (1974).

FN56. See supra note 51, at 80.

FN57. Id. at 91.

FN58. 429 U.S. 252, 266 (1977).

FN59. Brief for Petitioner, Warren McCleskey in No. 84‑6811‑‑McCleskey v. Kemp. Washington, D.C.: Supreme Court of the United States, October Term, 1985, Aug. 21, 1986, at 50.

FN60. Id. at 88.

FN61. Id. at 77.

FN62. See, e.g., Brief for Fisher et al, supra note 16, at 21.

FN63. See, e.g., supra note 47, at 1671‑76, 1685‑87 & 1691‑98.

FN64. See supra note 51, at 81.

FN65. 430 U.S. 482 (1977).

FN66. Id. at 485.

FN67. 476 U.S. 79 (1986).

FN68. Telephone interview with John Charles Boger, Professor of Law, School of Law, The University of North Carolina at Chapel Hill, Chapel Hill, N.C. (Feb. 17, 1994).

FN69. 478 U.S. 385 (1986).

FN70. Id. at 399.

FN71. Id. at 399‑400.

FN72. Id. at 400‑01.

FN73. Id. at 404.

FN74. See supra note 59, at 31‑32.

FN75. Id. at 41‑44.

FN76. 428 U.S. 420 (1980).

FN77. 428 U.S. 280 (1976).

FN78. 463 U.S. 992 (1983).

FN79. Brief For Writ of Certiorari to the United States Court of Appeals for the Eleventh Circuit on Behalf of Warren McCleskey in No. 84‑6811‑‑McCleskey v. Kemp. Washington, D.C.: Supreme Court of the United States, October Term, 1984, May 28, 1985, at 45.

FN80. 481 U.S. 279, 321 (1987).

FN81. Reply Brief in Behalf of Warren McCleskey in No. 84‑6811‑‑McCleskey v. Kemp. Washington, D.C.: Supreme Court of the United States, October Term, 1986, Oct. 3, 1986, at 8.

FN82. This doctrine, of course, was that because capital punishment was far more severe than any other penal sanction and irrevocable, the government seeking to impose it had to meet procedural standards under the Eighth Amendment far more stringent than those for non‑capital cases.

FN83. Brief for Respondent, the State of Georgia in No. 84‑6811‑‑McCleskey v. Kemp. Washington, D.C.: Supreme Court of the United States, October Term, 1985, n.d., at 6‑8.

FN84. Id. at 5‑7.

FN85. This argument may have been most explicitly expressed by two of Georgia's allies in the McCleskey litigation, the State of California and the County of Los Angeles. See, for example, Brief of Amici Curiae State of California and County of Los Angeles in Support of Respondent, the State of Georgia in No. 84‑ 6811‑‑McCleskey v. Kemp. Washington, D.C.: Supreme Court of the United States, October Term, 1986, Sept., 1986, at 24‑25.

FN86. See supra note 83, at 6.

FN87. Id. at 12.

FN88. 438 U.S. 586 (1978).

FN89. 455 U.S. 104 (1982).

FN90. See supra note 85, at 48.

FN91. Brief in Opposition For the Respondent, State of Georgia in No. 84‑6811‑‑ McCleskey v. Kemp. Washington, D.C.: The Supreme Court of the United States, October Term, 1984, June 28, 1985, at 26 and supra note 85, at 26‑42.

FN92. See supra note 85, at 26‑27.

FN93. See supra note 43, at 81.

FN94. See supra at 1046‑47 and 1052 and note 59, at 32‑44.

FN95. Oral Argument of Mary Beth Westmoreland, Assistant Attorney General of the State of Georgia in Behalf of the Respondent, the State of Georgia in McCleskey v. Kemp, 84‑6811 (transcript). Washington, D.C.: The Supreme Court of the United States, October Term, 1986, Oct. 15, 1986, at 46‑49.

FN96. 118 U.S. 356 (1886).

FN97. 364 U.S. 339 (1960).

FN98. See supra note 68.

FN99. See Maxwell v. Stephens, 398 F.2d 138 (8th Cir.1968).

FN100. See supra note 79, at 13‑14.

FN101. Id.

FN102. 476 U.S. 79 (1986).

FN103. See supra note 68.

FN104. See supra note 51, at 17.

FN105. See supra note 68.

FN106. Id.

FN107. See supra note 95, at 40‑41.

FN108. En Banc Brief For Petitioner McCleskey as Appellee and Cross‑Appellant (Habeas Corpus) in No. 84‑8176 McCleskey v. Zant. Atlanta, GA: U.S. Circuit Court of Appeals for the Eleventh Circuit, May 8, 1984, at 67.

FN109. See supra note 95, at 40‑41.

FN110. Id.

FN111. See supra note 68.

FN112. Circulation of first draft of opinion for the Court by Justice Lewis Powell in McCleskey v. Kemp File, THURGOOD MARSHALL PAPERS, The Library of Congress, Washington, D.C.

FN113. Memorandum to the Conference from Justice Sandra Day O'Connor in N. 84‑ 6811‑‑McCleskey v. Kemp of November 14, 1986. The McCleskey v. Kemp File, THURGOOD MARSHALL PAPERS, The Library of Congress, Washington, D.C.

FN114. Memoranda to the Conference from Chief Justice William Rehnquist and Justice Byron White in No. 84‑6811‑‑McCleskey v. Kemp File, THURGOOD MARSHALL PAPERS, The Library of Congress, Washington, D.C.

FN115. See supra note 112, at 12.

FN116. Id. at 13‑14.

FN117. Id. at 21.

FN118. Id. at 24.

FN119. Id. at 27.

FN120. See also the subsequent law review reactions at supra note 40.

FN121. McCleskey v. Kemp, 753 F.2d 877, 885‑86 (1985).

FN122. McCleskey v. Zant, 580 F.Supp. 338 (1984).

FN123. Motion For Leave to File Brief Amici Curiae and Brief of the Congressional Caucus, The Lawyers' Committee For Civil Rights Under Law, and the National Association for the Advancement of Colored People, As Amici Curiae in No. 84‑8176‑‑McCleskey v. Kemp. Washington, D.C.: The Supreme Court of the United States, October Term, 1986, Aug. 21, 1986, at 19‑20.

FN124. Id. at 20.

FN125. Id. at 21.

FN126. 753 F.2d 877, 879‑80 (1985).

FN127. This statement, itself, was clearly wrong. Statistically, a twenty‑ percentage‑point difference is radically different from one of 20 percent‑‑as the McCleskey legal team had to argue on a number of occasions, both at the federal district court level and before the United States Circuit Court of Appeals.

FN128. See supra note 126.

FN129. 753 F.2d 877, 898 (1985).

FN130. Id.

FN131. Id. at 920.

FN132. Id. at 924.

FN133. Id. at 926.

FN134. Id. at 927.

FN135. Id.

FN136. See supra note 17.

FN137. See supra note 119.

FN138. See supra note 17.

FN139. Id.

FN140. See supra at 1064‑65.

FN141. See infra at 1083‑84. Vada Berger et al., Too Much Justice: A Legislative Response to McCleskey v. Kemp, 24 HARV. C.R.‑C.L. L. REV. 437 (1989).

FN142. Justice Harry Blackmun's dissenting opinion alludes to the highly persuasive legislative history of the Equal Protection Clause militating against Justice Scalia's position. See 481 U.S. 279, 346‑47 (1987). See also the powerful argument against such a view in McCleskey's brief supporting his request for a United States Supreme Court writ of certiorari, supra note 79, at 2‑8.

FN143. Id.

FN144. For a comprehensive analysis of Scalia's attacks upon most of the Court's modern Eighth Amendment jurisprudence, see Gey, supra note 27, at 22 & 67‑132.

FN145. See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175‑88 (1989).

FN146. Justice Scalia, of course, has advocated, frequently through dissenting opinions, the overturning of many of the Court's main precedents in areas such as abortion, affirmative action, and church‑state relations, in addition to those relating to capital punishment. (For his most explicit championing of such a position, in the death penalty cases, see his dissenting opinion in South Carolina v. Gathers, 490 U.S. 805, 823‑25 (1989)). And for a justice whose approach to decision‑making would have contrasted with Scalia's dramatically, given his respect, in certain well defined instances, for stare decisis, see the analysis of Justice Tom Clark in Dennis D. Dorin, "Seize the Time": Justice Tom Clark's Role in Mapp v. Ohio, LAW AND THE LEGAL PROCESS 21‑ 72 (Swigert, ed. 1982) and Dennis D. Dorin, Truman's "Biggest Mistake"?: Tom Clark's Appointment to the Supreme Court in HARRY S. TRUMAN, THE MAN FROM INDEPENDENCE 336‑55 (Levantrosser, ed. 1986).

FN147. Rehnquist Says he Felt a Duty to Prod Court to the Right, WINSTON‑SALEM J., Mar. 4, 1985, at 8.

FN148. This "result‑oriented" approach to judicial decision‑making seems the epitome of the kind condemned by such fellow conservatives of Scalia as George Will. See George Will, Legislative Justices, CHARLOTTE OBSERVER, Apr. 12, 1994, at 3C, in which Will derides justices who consider parts of the Constitution such as the Equal Protection Clause as "empty vessels into which [they can] pour their social agendas." Such decision‑making, according to Will, cannot be called the development of constitutional law. For members of the Court engaging in it are "not rendering decisions based on a search for the Constitution's determinable historical meaning."

FN149. 100 U.S. 303 (1880).

FN150. Id. at 309.

FN151. Id. at 306.

FN152. Id. at 310.

FN153. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).

FN154. 481 U.S. 279, 308 (1987).

FN155. See supra note 17.

FN156. 100 U.S. at 305.

FN157. 499 U.S. 400 (1991).

FN158. Id. at 431.

FN159. 5 U.S. 1 (1803).

FN160. Id.

FN161. Scalia's scorn for these individuals was recently expressed in his opinion in Callins v. Collins, 62 L.W. 3546 (1994).

FN162. 163 U.S. 537 (1896).

FN163. Id.

FN164. Id. at 551.

FN165. RICHARD KLUGER, SIMPLE JUSTICE 80 (1975).

FN166. 109 U.S. 3, 22‑23 (1883).

FN167. See supra note 162, at 544.

FN168. KLUGER, supra note 165, at 69.

FN169. See supra note 39.

FN170. Antonin Scalia, Historical Anomalies in Administrative Law, 1985 YEARBOOK OF THE SUPREME COURT HISTORICAL SOCIETY 103, 110 (1985).

FN171. Arthur Selwyn Miller, On the Choice of Major Premises in Supreme Court Opinions, THE SUPREME COURT AND PUBLIC POLICY 130 (Shapiro, ed. 1969).

FN172. See supra note 17.

FN173. Author's letter to Justice Antonin Scalia of October 18, 1993, with which the following newspaper story delineating the main points of this article was enclosed. See Dennis D. Dorin, Justice For All‑‑Did Scalia Turn his Back on Racially Biased Executions?, CHARLOTTE OBSERVER, Aug. 8, 1993, at 1B, 4B.

FN174. See, e.g., King, supra note 36, at 5; Kannar, supra note 33, at 1297; and Charles Fried, Manners Makyth the Man: The Prose Style of Justice Scalia, 16 HARV. J.L. & PUB. POL'Y 529, 534 (1993).

FN175. See, e.g., Jean Meaux, Justice Scalia and Judicial Restraint: A Conservative Resolution of the Conflict Between Individual and State, 62 TUL.L.REV. 225, 228‑29 (1987).

FN176. See, e.g., Jeffrey Rosen, The Leader of the Opposition, NEW REPUBLIC, Jan. 13, 1993, at 20‑27; Lyle Denniston, Scalia: Captain of a Ship That May Never Come In, BALTIMORE SUN, May 15, 1993, at 1A, 9A; and David Rudenstine, Foreward, 12 CARDOZO L. REV. 1293, 1295 (1991).

FN177. Richard Brisbin, Jr., The Conservatism of Antonin Scalia, 105 POL. SCI. Q. 1, 28 (1990).

FN178. A peculiar theme has developed among court watchers in the mass media and the law schools whereby it is simply a "given" that Justice Scalia's intellect towers over those of most or all of his present colleagues. Consequently, one of the first questions asked about a nominee like a Stephen Breyer, for example, is whether, intellectually, he can compete even with a Scalia. Hence, Gwen Ifill of The New York Times, among many others, reports that "Judge Breyer possesses one trait that Democrats and liberals starved of High Court appointments for a generation most seek: the raw brain power to match Antonin Scalia, commonly acknowledged to be the Rehnquist Court's intellectual leader." See Gwen Ifill, President Chooses Breyer, An Appeals Judge in Boston, for Blackmun's Seat, N.Y. TIMES, May 14, 1994, at 1, 10.

Such genuflections to Scalia's seemingly legendary jurisprudential acumen raise two questions: First, what started them? Second, how accurate are they?

Studies of this kind may hopefully bring a touch of reality to a commentary replete with such caricatures. It can safely be asserted via this analysis, at least, that the Antonin Scalia revealed in the McCleskey Memorandum is hardly an Oliver Wendell Holmes, Benjamin Nathan Cardozo, or even a Felix Frankfurter! (See also a republication of a July 18 and 25 NEW REPUBLIC editorial, Scalia Should Tone Down Rhetoric, CHARLOTTE OBSERVER, July 13, 1994 at 8A).

FN179. Scalia made it clear publicly a few years later that he was not concerned about such racial sensibilities on Marshall's part in this retort to Marshall in his opinion for the Court in Holland v. Illinois, 493 U.S. 474, 486 (1990); "Justice Marshall's dissent rolls out the ultimate weapon, the accusation of insensitivity to racial discrimination‑‑which will lose its intimidating effect if it continues to be fired so randomly ...."

FN180. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989) and Scalia, supra note 145. See also as examples of the many such analyses, Kannar, supra note 174, at 1297‑1357; King, supra note 36, at 1‑ 77; David Boling, The Jurisprudential Approach of Justice Antonin Scalia: Methodology Over Result? 44 ARK. L. REV. 1143 (1991); James Wyszynski, Jr., In Praise of Judicial Restraint: The Jurisprudence of Antonin Scalia, 1 DET. C.L. REV. 117 (1989).

FN181. See, e.g., Rosen, supra note 176 and David Schultz, Judicial Review and Legislative Deference: The Political Process of Antonin Scalia, 16 NOVA L. REV. 1249‑1283 (1992).

FN182. See supra note 144.

FN183. Id. Scalia, of course, did eventually join Powell's opinion. So, ultimately, he did renounce his McCleskey Memorandum. Therefore, how can his authoring of it possibly be an example of "result‑oriented" decision‑making? For maybe he did find, on further reflection, that Baldus' work was not probative for the very reasons Powell postulated. Hence, even if he believed that racial discrimination systematically influenced Georgia's infliction of the death penalty, he might have concluded that no one, as of yet, had legally proven it. And perhaps he also even changed his view about the Equal Protection and Cruel and Unusual Punishment Clauses' not condemning it.

And even if Scalia remained committed to his McCleskey Memorandum views, had he not shown a commendable willingness to sacrifice his own positions for the doctrinal coherence of the law as a whole?

Yet, is it at all likely that, after decades of legal practice and teaching, as well as adjudication, Scalia, in a matter of a few weeks, would have abandoned his firmly expressed conclusion that Baldus' analysis was irrelevant because racial discrimination's impact upon capital sentencing did not implicate constitutional issues? Or that he suddenly, after months of study, changed his views 100% about the Baldus conclusions' soundness? And, if he had not done so, is it to his credit that, on bogus premises, he became the crucial fifth vote for an opinion sending a man to his execution?

The fact remains that the Antonin Scalia revealed by his McCleskey Memorandum was willing‑‑at the later stages of his Court's consideration of McCleskey‑‑to assert seriously, despite the Equal Protection Clause's overwhelming history to the contrary, that the Constitution gave the green light to racially discriminatory death sentencing. And only a Justice who was so "result‑ oriented" that he or she regarded the text and origins of the Fourteenth Amendment as of close to no significance at all in his or her decision of cases would have even attempted, ostensibly solely for policy reasons, to champion such a position.

FN184. Richard Posner's definition of "result‑oriented" judicial decision‑ making seems appropriate for this analysis. See Richard Posner, The Meaning of Judicial Self‑Restraint, 59 IND. L.J. 1, 7‑8.

FN185. See, e.g., Dwight L. Greene, Justice Scalia and Tonto, Pluralistic Ignorance, and the Myth of Colorless Individualism in Bostick v. Florida, 67 TUL.L.REV. 1979‑2062 (1993) and Christopher E. Smith, Justice Antonin Scalia and Criminal Justice, 81 KY. L.J. 187, 209‑11 (1992‑1993).

FN186. See Justices Powell's and Scalia's respective positions in Booth v. Maryland, 482 U.S. 496, 468‑519, 519‑21. See also Scalia's later stands in South Carolina v. Gathers, 490 U.S. 805, 823‑25 (1989) and Payne v. Tennessee, 111 S.Ct. 2597, 2613‑14 (1991) and see also Gey, supra note 27.

FN187. Id.

FN188. 499 U.S. 400, 431 (1991).

FN189. 62 L.W. 3546 (1994).

FN190. Id. at 3547, 3549.

FN191. Id. at 3546. Curiously, Scalia omitted a staple of this textualist Fifth Amendment argument, the Double Jeopardy Clause. Could that be because he knew that he was already on record asserting that the Eighth Amendment had evolved to the point where it outlawed threats to "limb," flogging and branding, that would not have been seen as cruel and unusual punishments by the Founding Fathers? See, e.g., Scalia, supra note 180, at 861‑64.

Apparently, Scalia's decision‑making is sufficiently "result‑oriented" in this instance to permit him to interpret the Cruel and Unusual Punishments Clause as evolutionary or as historically static, depending upon what the pursuit of his policy objectives demands.

FN192. Bethany Cook & Lisa Kahn, Justice Scalia's Due Process Model: A History Lesson in Constitutional Interpretation, 6 ST. JOHN'S J. LEGAL COMMENT. 263, 280‑81 (1991).

FN193. See Antonin Scalia, The Disease As Cure, 1 WASH. U. L.Q. 147‑57 (1979).

FN194. See Greene, supra note 185.

FN195. Kluger, supra note 165, at 66.

FN196. John C. Jeffries Jr., A Change of Mind That Came Too Late, N.Y. TIMES, June 23, 1994, at A15.

FN197. Kennedy, supra note 16, at 1389.

FN198. See David O'Reilly, Guinier's Derailment Didn't Quiet Her Voice, CHARLOTTE OBSERVER, Dec. 12, 1993, at 1A, 8A and Wiley Hall III, Racism: The Taboo Subject, CHARLOTTE OBSERVER, Sept. 21, 1993, at 8A.

FN199. See, e.g., Richard Morin, Those Who Live in a House Divided Against Itself‑‑Bigotry Threatens to Balkanize America, WASHINGTON POST NAT'L WEEKLY EDITION, Mar. 7‑13, 1994, at 37; Claude Lewis, To Be Black in America, CHARLOTTE OBSERVER, Dec. 17, 1993, at 17A; and Foon Rhee, Race Relations Strained, CHARLOTTE OBSERVER, Dec. 12, 1993, at 1A, 6A.

FN200. H. Brent McKnight, How Shall We Then Reason? The Historical Setting of Equity, 45 MERCER L. REV. 919 (1994). See Owen Fiss, Forward: The Form of Justice, 93 HARV. L. REV. 1‑17 (1979).

FN201. Even William Wilbanks, a strong critic of the Baldus study's conclusions, has maintained that the Court in McCleskey failed properly to come to terms with its implications. See William Wilbanks, Reactions to McCleskey vs. Georgia, 21 THE PROSECUTOR‑‑J. NAT'L DISTRICT ATT'YS ASS'N 21, 24 (1988).

FN202. Dorin, supra note 47, at 1675‑76.

FN203. See supra note 16.

FN204. See supra note 201, at 23‑26. For a checklist for a court to employ when confronting such a study, see Dennis D. Dorin, A Case Study of the Misuse of Social Science in Capital Punishment in CHALLENGING CAPITAL PUNISHMENT 215‑22, 228‑44 (Haas & Inciardi, eds. 1988).

FN205. Id. See supra note 201.

FN206. Memorandum to the Conference from Justice Thurgood Marshall in No. A‑ 227‑‑McCleskey v. Bowers of Sept. 24, 1991. Memoranda to the Conference File, THURGOOD MARSHALL PAPERS, The Library of Congress, Washington, D.C., at 1.

FN207. The Washington Legal Foundation and the Allied Educational Foundation presented such a scenario in their McCleskey brief, arguing that an LDF victory would establish a wholly new "affirmative action" program (with racial quotas) for the entire sentencing system. See Brief Amici Curiae of the Washington Legal Foundation and the Allied Educational Foundation in Support of Respondent, The State of Georgia, No. 84‑6811‑‑McCleskey v. Kemp. Washington, D.C.: The Supreme Court of the United States, October Term, 1986, Sept. 19, 1986, at 2, 4, 10.

FN208. Dorin, supra note 47.

FN209. See supra note 17.

FN210. This position was later advocated by Justice Stevens, in his dissent, joined by Justice Blackmun, from McCleskey. See 481 U.S. 279, 366‑67 (1987).

FN211. Id. at 320‑67.

FN212. See Fiss, supra note 200, at 50‑58.

FN213. See Kennedy, supra note 16, at 1414‑17.

FN214. See supra note 191.

FN215. Tourgee's phrase in his brief for Plessy was "Justice is pictured blind and her daughter, the Law, ought at least to be color‑blind." See LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW, Vol. 13 (Kurland & Casper, eds. 1975), at 46.

FN216. Id. at 62‑63.

FN217. 481 U.S. 279, 344 (1987).

FN218. Minor, supra note 42, at 11A.

FN219. See supra note 206, at 2.

FN220. The Court's policy‑making has apparently survived the similar alleged threats posed by Bob Woodward's and Scott Armstrong's The Brethren, for example (BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN‑‑INSIDE THE SUPREME COURT (1979)). See, e.g., Anthony Lewis, Supreme Court Confidential, THE NEW YORK REVIEW OF BOOKS, Feb. 7, 1980, at 3, 7; C. Robert Zelnick, Inside the Chambers, THE CHRISTIAN SCIENCE MONITOR MONTHLY BOOK REVIEW, Jan. 14, 1982, at B1; and Dennis D. Dorin, The Brethren: Inside the Supreme Court, 42 THE J. POL. 1221‑22 (1980).

Nevertheless, it is not impossible that fallout from The Brethren may have had a "chilling effect" on the Court's deliberations, contributing to the relatively minuscule written exchanges among the Justices in key cases that Jeffrey Rosen says that he has found via the Marshall Papers. See Rosen, supra note 14.

How such a result could ever be established, however, and what a researcher could do in the face of it remain to be seen!

FN221. One wonders at the moral credentials, for example, of a nation that, if the Baldus study is accurate, routinely sentences its citizens to death on a racial basis‑‑while lecturing other nations on how best to uphold the civil rights and liberties of theirs.

See, e.g., David K. Shipler, Shultz Urges End to Apartheid, CHARLOTTE OBSERVER, Sept. 30, 1987, at 3A and Elaine Sciolino, Christopher Has Little to Show on China‑‑U.S. Rights Talks, CHARLOTTE OBSERVER, Mar. 15, 1994, at 4A.

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