While crimes and trials have long made for good storytelling, and have sustained entire careers for writers of paperback true crime and fiction, the world of judges is rarely as compelling. In the Supreme Court, ideas — not stories — are the basis for decisions by old, formal figures, who make a habit of seeming austere. Often, the ideas they debate are so complex that it is difficult for the lay reader to grasp without tedious study.
This makes Evan Mandery’s new book,” A Wild Justice: The Death and Resurrection of Capital Punishment in America,” all the more impressive. He takes a series of Supreme Court cases from the early 1960s through the mid-1970s and shows how the NAACP Legal Defense Fund jumped on an early indication of opposition to the death penalty within the court and built a concerted legal assault against the practice. In 1972, they succeeded. The nation’s highest court halted all executions.
Then, in 1976, the court brought the punishment back, delivering a crushing defeat to death penalty opponents, and that action has lasted to this day.
It’s a naturally alluring story, and Mandery, a professor of criminal justice who has written three novels, shies away from the usual strategy of writers who examine the death penalty. It’s common to see long, gruesome scenes of both murder and executions, as writers impress upon their readers just how high the stakes are for the lawyers and judges who debate case law and constitutional interpretation.
Instead, Mandery gives us biographical sketches of nearly every justice, judge and lawyer who entered the debate professionally. Justice William J. Brennan’s shift from the conservatism of President Eisenhower, who appointed him to the court in 1956, is depicted against his slow alienation from the Catholic Church. He ruled against the church’s wishes in Roe v. Wade and a lesser-known decision about Bible readings in public schools.
Mandery plucks from a biography of the justice a scene at Sunday mass, where Brennan declined to stand for the decency pledge, an oath to not watch morally objectionable films, “because his judicial duties required him to examine obscene material.”
“You have no idea what it’s like to be the only person who refuses to stand,” Brennan said. “Everybody turns and looks at me. It’s a terrible experience.”
Brennan later voted against the death penalty (which the Catholic church then still supported), and while the church anecdote has no direct correlation to the decision, it’s part of the big picture Mandery is painting, in which every judge interpreted the constitution in a way that could not be divorced from personal experiences.
Mandery relies more on published works and personal papers than on interviews, meaning his determinations of cause and effect are debatable, but that’s forgivable, since he seldom forces one interpretation and gives enough biographical detail to leave particular connections up to individual readers.
Once we’ve grasped each characters’ perspective and motivations, Mandery pits them against one another in conferences, oral arguments and internal memos that are written with ample sports metaphors. Conferences of ideas become boxing or baseball matches. Describing one meeting between the judges in which they take turns offering their thoughts, he ends almost every paragraph with sentences like, “It was one-to-nothing for Brennan’s team,” “The game was tied at one all” and “On deck was Potter Stewart.”
As for the lawyers, Mandery lays out, in fascinating detail, how strategies divided activists and lawyers even when they agreed that the death penalty was unjust. Sometimes the needs of the movement went against the interests of individual men sentenced to death.
In order to make a propulsive narrative, Mandery needs teams to root for and against. The Legal Defense Fund, who tirelessly spent a decade fighting to bring down the death penalty, is clearly the protagonist here, and there is a tendency in his narration to root for them. It feels more like the choice of a storyteller than a partisan — the pro-death penalty forces were never very unified, and hence would not make as cogent a protagonist.
Much like Jeffrey Toobin in his narrative accounts of Supreme Court history, “The Nine” and “The Oath,” Mandery has managed to turn textbook-style legal history into cinematic scenes with memorable characters. He’s done this by showing us that the law is always made by people, and where there are people, there are stories.
A Wild Justice: The Death and Resurrection of Capital Punishment in America
W.W. Norton & Co., $29.95