AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 2 | 2022

AMERICAN JOURNAL
of LAW and EQUALITY

MCCLESKEY ACCUSED
Justice Powell and The Moral Price of Institutional Pride

Josh Bowers*

In McCleskey v. Kemp,1 the Supreme Court eﬀectively “closed the courthouse doors” to
constitutional claims of systemic racism in the criminal-legal system.2 The defendant,
Warren McCleskey, had oﬀered a sophisticated academic study demonstrating pro-
nounced racial skews in the administration of capital punishment in Georgia. Consistent
with social science before and since, the study showed that the race of the victim was the
most signiﬁcant variable in determining whether a murder defendant faced or received a
sentence of death. Remarkably, the Court credited the study’s robust ﬁndings; yet in an
opinion authored by Justice Lewis F. Powell, a ﬁve-Justice majority held the study largely
irrelevant, concluding that its statistics could demonstrate neither “exceptionally clear
proof” of purposeful discrimination to establish an equal protection claim nor a “substan-
tial risk” of “arbitrary and capricious” punishment to establish a claim of cruel and un-
usual punishment.3

*F.D.G. Ribble Professor of Law, University of Virginia School of Law. Many thanks to Elana Oser and Bria Smith for
their exceptional research assistance. Thanks also to Charles Barzun, Anne Coughlin, Brandon Hasbrouck, Richard Re,
and Fred Schauer. I received constructive comments and questions at the Neighborhood Criminal Justice Roundtable
and the Hebrew University Criminal Justice Workshop.

1
2

McCleskey v. Kemp, 481 U.S. 279 (1987).
MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 139 (anniversary ed.
2020); see also Cassandra Stubbs, The Dred Scott of Our Times, ACLU (Apr. 16, 2012) (“[T]he Court . . .
eﬀectively shut the door to anything short of ‘smoking gun’ evidence of intentional discrimination.”); infra
notes 50–55, 81–86, 129, 189–96, 220 and accompanying text.
McCleskey, 481 U.S. at 297; id. at 322 (Brennan, J., dissenting); infra notes 40–44 and accompanying text.

© 2022 Josh Bowers. Published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International
license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00034

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Commentators have dubbed Powell’s decision a modern-day Dred Scott.4 But a better
point of antebellum comparison might be Miller v. McQuerry,5 one of the opinions Robert
Cover examined in his groundbreaking work of legal history, Justice Accused: Antislavery
and the Judicial Process, a searing portrait of judicial timidity in the face of the horrors of
the fugitive slave acts.6 The judges upon whom Cover focused were ostensibly aboli-
tionists. They knew better but refused to do better. Facing a “diﬃcult choice”—a
“moral-formal dilemma”—between their personal opposition to slavery and their positive
obligations to perceived legal commands, they prioritized “role ﬁdelity” and “rule ﬁdelity”
and “marched to the music.”7 These were bad decisions not only because they constituted
“almost universal judicial acquiescence”8 to racialized state violence but also because they
entailed shabby forms of legal reasoning. As Cover explained, these judges made awful
outcomes appear legally inevitable by unnecessarily resorting to a cheap set of jurispru-
dential techniques: (1) “elevation of the stakes,” (2) a “retreat to formalism,” and (3)
“ascription of responsibility elsewhere.”9

In McCleskey, Justice Powell made the same moves. He exaggerated the dangers of
pursuing an alternative moral course; he read positive law narrowly, pretending the case
was easy; and he accepted no accountability for the problematic results.10 More to the
point, Powell apparently shared with his antislavery predecessors an abolitionist sensibil-
ity. When asked, in retirement, by his biographer, John Jeﬀries, whether he regretted any
of his previous votes, Powell responded: “Yes, McCleskey v. Kemp.”11 When Jeﬀries
pressed Powell on whether he meant that he was now open to statistically based, consti-
tutional claims of systemic inequality, Powell declared categorically, “No, I would vote the
other way in any capital case. . . . I have come to think that capital punishment should be
abolished.”12

In other ways, however, Justice Powell does not ﬁt neatly within the Cover mold.
Cover rooted the cowardice of his antislavery judges, at least partially, in the

5
6
7
8
9
10
11
12

Dred Scott v. Sandford, 60 U.S. 393 (1856); Annika Neklason, The ‘Death Penalty’s Dred Scott’ Lives On, ATLANTIC,
June 14, 2019; Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of
Procedure, 10 OHIO ST. L.J. 5 (2012) (noting comparisons between McCleskey and other “infamous decisions
like Dred Scott, Korematsu, and Plessy[,] . . . shorthand for ‘cases in which the Supreme Court failed the
Constitution’s most basic values”); Stubbs, supra note 2; Hugo Adam Bedau, Someday McCleskey Will Be
Death Penalty’s Dred Scott, L.A. TIMES, May 1, 1987.
Miller v. McQuerry, 17 F. CAS. 332, 339 (C.C.D. Ohio 1853).
ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975).
Id. at 5–7, 229, 235, 252 (describing how these cases “produced an almost uniform response of role ﬁdelity”).
Id. at 236.
Id. at 229.
Infra Part I.
JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR.: A BIOGRAPHY 451 (1994).
Id.

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“thoroughgoing positivism” of the era.13 But Powell was neither a positivist nor a formal-
ist. Indeed, he was not even a death-penalty abolitionist—at least not in the way one would
normally understand that concept.14 What, then, accounted for Powell pursuing such a
remarkably similar—and similarly shoddy15—moral, prudential, and jurisprudential
course? In this essay, I dissect McCleskey v. Kemp. I conclude that amoral positivism can-
not explain Powell’s McCleskey decision. To understand the decision, we must dig deeply
into Powell’s psychology. There we discover Powell’s abiding principled commitment to a
particular brand of anti-positive institutionalism—a moral orientation toward the rule of
law and, more to the point, its systems and stakeholders.16

* * *
It is impossible to separate Powell the person from Powell the professional. More so than
with most judges, Powell’s two lives were bound up. Powell made plain, for instance, in
Bowers v. Hardwick that his vote to uphold Georgia’s sodomy law was informed by his
subjective (and obtuse and “puzzling”) belief that he “had [n]ever met a homosexual.”17 Like-
wise, personal experience framed Powell’s moderate support for reproductive rights. Powell
came to appreciate the dangers of illegal abortion only after discussing the risks with his
daughter and learning of the death of a pregnant woman connected to his former law ﬁrm.18
This was a recurring theme throughout Powell’s career. Familiarity mattered to him; it was

14
15

16
17

COVER, supra note 6, at 1, 34, 258 (describing a nineteenth century “thoroughgoing positivism . . . concerning the
origin of ‘law’” that rejected the earlier inﬂuence of natural law); see also Robert M. Cover, Book Review, 68 COLUM.
L. REV. 1003, 1005 (1968) (reviewing RICHARD HILDRETH, ATROCIOUS JUDGES: LIVES OF JUDGES INFAMOUS AS TOOLS OF
TYRANTS AND INSTRUMENTS OF OPPRESSION (1856) (“We do not generally seek moral guidance from our judges. Their
role is ‘legal’ and our age is singularly unreceptive to natural law theories which could have any real weight in
decision making.”); infra notes 229–236 and accompanying text (discussing Cover’s conception of positivism as it
related to his antislavery judges). To be fair, Cover identiﬁed “thoroughgoing legal positivism []as [only] one of
the many factors that determined the complicity of the antislavery judge in the system of law that he himself
considered immoral.” COVER, supra note 6, at 1. Still, it is a principal focus of his book, and it is a theme that
many commentators have drawn from the book since its publication. Infra notes 229–236 and accompanying text
(discussing Cover’s inﬂuence on contemporary conceptions of positivism).
Infra Part II.C.
RANDALL KENNEDY, RACE, CRIME, AND THE LAW 335 (1998) (discussing McCleskey and noting that “none of the
justices’ opinions is altogether satisfactory,” but “[t]he worst of the lot is also the one backed by the most
power: Justice Powell’s opinion for the Court”); infra Part I.
Infra Part II.A-B.
JEFFRIES, supra note 11, at 521, 526 (quoting Powell: “I don’t believe I’ve ever met a homosexual.”). See generally
Bowers v. Hardwick, 478 U.S. 186 (1986).
JEFFRIES, supra note 11, at 347; Mark Tushnet, Justice Lewis F. Powell and the Jurisprudence of Centrism, 93 MICH.
L. REV. 1854, 1877–88 (1995) (“To the extent that restrictive abortion laws adversely aﬀected people like him and
his family, he found them unconstitutional; to the extent that they adversely aﬀected women who were not part of
his social vision . . . he found them constitutional.”).

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MCCLESKEY ACCUSED

the foundation for his sympathies—the basis for his implicit biases. Without that personal
connection, Powell’s “essential humanity” more often remained “hidden from view.”19

By most accounts, Powell was an ideologically and temperamentally even-keeled
individual—a “hard-line moderate,” as John Jeﬀries titled a chapter of his biography.20 There
is some evidence, to be sure, that Powell did not wholly deserve this jurisprudential and dispo-
sitional reputation. When Powell was chair of the Richmond School Board, for instance, “he
never really identiﬁed himself with the needs and aspirations of Virginia’s black school-
children.”21 And, particularly in the years before he rose to the bench, Powell sometimes proved
willing to adopt the role of reactionary ﬁrebrand. Powell once insisted, in a “hard-edged”
editorial, that America was “not a repressive society” and had no “system of countenanced
oppression.”22 Likewise, in response to Martin Luther King Jr.’s Letter from a Birmingham
Jail, Powell gave an angry speech denouncing civil disobedience as antecedent to “organized
lawlessness and even rebellion” and attacking King, unfairly, as one who would “preach, prac-
tice and condone lawlessness.”23 And, of course, Powell prepared a now-public (then-secret)
document—since dubbed the “Powell Memorandum” or “Powell Manifesto”—that critics
have called the blueprint for contemporary movement conservatism.24 Still, for the purposes
of this essay, I plan to treat Powell charitably—to accept the prevailing perspective that Powell
was a profoundly decent person and jurist. Indeed, I hope to reveal that these are the precise
qualities that led Powell to stumble so badly in McCleskey v. Kemp.25

Powell was, ﬁrst and foremost, an institutionally proud man—a man who prioritized
the interests of the institutionalists closest to him. Powell saw the best in these privileged
professionals, and, in that way, he failed to perceive them at their worst. Ironically, then, it
was his implicit institutional biases that led him to undervalue the implicit racial biases at
work in the criminal-legal system. More to the point, Powell’s institutional biases were
themselves forms of structural racism in action. His preferences for his own cherished

19
20
21

23
24

JEFFRIES, supra note 11, at 527 (commenting on Bowers).
Id. at 131.
Id. at 163–64, 172; Tushnet, supra note 18, at 1876 (“Virginia was the home of ‘massive resistance’ to
desegregation, and Powell did nothing in public [as chair of the Richmond School Board] and little in private
to oppose such resistance.”).
Lewis F. Powell, Jr., Civil Liberties Repression: Fact or Fiction?, RICHMOND TIMES DISPATCH ( June 28, 1971); JEFFRIES,
supra note 11, at 239 (describing the editorial as “a hard-edged reaction” to social unrest).
JEFFRIES, supra note 11, at 238 (quoting Powell).
Brandon Hasbrouck, Democratizing Abolition, __ UCLA L. REV. __ (forthcoming) (manuscript on ﬁle with
author) (tracing the origins of the Heritage Foundation and the American Legislative Exchange Council to the
Powell Memorandum and observing that “[m]ovement conservatism largely owes its present shape to the Powell
Memorandum”); Jerry Landay, The Powell Manifesto: How A Prominent Lawyer’s Attack Memo Changed
America, MEDIA TRANSPARENCY (Aug. 20, 2002).
Infra Part II.

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systems and systemic insiders were mechanisms by which he legitimized and perpetuated
the criminal-legal system’s ongoing subordination of outsiders.26

It may seem odd to call into question character traits like geniality and gentility. These
are often admirable human qualities. But there is, particularly among moderate legal pro-
fessionals, something of a “cult of civility” that, in some settings, has great capacity to
cause (or, at least, tolerate) real harm.27 Its initiates accept instinctively the idea that mod-
eration is an intrinsic moral virtue. To my thinking, however, it seems obvious that the
normative worth of moderation can only ever be contingent. And, in extreme cases—like
Chamberlain treating Hitler with kid gloves—moderation may translate to the appease-
ment of morally horrible actors.28 Even in more banal circumstances, civility’s cult may
countenance oppression by commanding kindness and respect toward friends and
neighbors—peers and colleagues—even as they apathetically disregard (or even aggressively
abuse) the moral interests of marginalized groups. On this reading, Justice Powell was
undone by his own myopic decency—by his lack of a robust peripheral moral vision.
Thus, in McCleskey v. Kemp, he reﬂexively deferred to institutional stakeholders and largely
ignored persuasive statistical evidence that capital practice was, at every stage, systemically
and systematically skewed against Black murder victims.29 He refused to countenance the
reality that his own justice system could countenance so much injustice.30

Powell made McCleskey personal—just as he had made Bowers personal a year earlier.
His jurisprudential approach to both cases was regrettable in the basic sense that Powell
would come, in retirement, to regret the “ugly” rulings.31 But, more to the point, his
approach was regrettable because it entailed a “willful blindness” or “willed ignorance”
of social conditions and consequences.32 On the subject of Bowers, Jeﬀries explained:
“Powell had never known a homosexual because he did not want to. In his world, . . .
homosexuality did not ﬁt, and Powell therefore did not see it.”33 Likewise, in Powell’s
world, systemic racism in criminal-legal institutions did not ﬁt, and Powell therefore
did not see it. In each case, Powell lacked exposure to the most aﬀected populations
and therefore exhibited a “failure of . . . moral imagination.”34 This is what Mark Tushnet

26
27

28
29

Id.
Chad Denton, The Cult of Civility and Depoliticization of Politics, MEDIUM (Apr. 21, 2020) https://medium.com
/@csdenton/the-cult-of-civility-and-the-depersonalization-of-politics-4eaed305df1d.
TIM BOUVERIE, APPEASEMENT: CHAMBERLAIN, HITLER, CHURCHILL, AND THE ROAD TO WAR (2019).
Infra Part II.B; cf. Mike Laws, Why We Capitalize “Black” (and not “white”), COLUM. JOURNALISM REV. ( Jun. 16,
2020) (“For many people, Black reﬂects a shared sense of identity and community. White carries a diﬀerent set of
meanings; capitalizing the word in this context risks following the lead of white supremacists.”).

30 McCleskey, 481 U.S. at 339 (Brennan J., dissenting) (labeling Powell’s timid approach “a fear of too much justice”).
JEFFRIES, supra note 11, at 530 (referring to Bowers as an “ugly opinion” and quoting Powell, post-retirement, in
31
response to a question about the case: “I think I probably made a mistake in that one.”); infra Part II.E.
JEFFRIES, supra note 11, at 528 (describing Bowers); Sundby, supra note 4, at 27, 30 (describing McCleskey).
JEFFRIES, supra note 11, at 529.
Tushnet, supra note 18, at 1881; see also JEFFRIES, supra note 11, at 527 (explaining that, in Bowers, Powell “failed”
to bring to bear his characteristic “wisdom and reﬂection”).

32
33
34

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referred to as Powell’s “limited social vision.”35 This is how a judge who fashioned himself
a moral, moderate, incremental, and sensitive pragmatist could author an opinion that was
immoral, immoderate, maximalist, and even callous.36

In the ﬁrst part of this essay, I examine Powell’s McCleskey opinion, discussing its
moral and jurisprudential shortcomings and the ways in which its reasoning tracks
Cover’s fugitive-slave cases. In the second part, I provide a biographical and psychological
proﬁle of Powell, and I reveal the inﬂuence that his anti-positive, institutional pride had on
his decision and, likewise, his ultimate repudiation of it. In the third part, I sketch a por-
trait of the kind of judge who is likelier to prove willing to reject immoral law and legal
outcome. Perhaps surprisingly, that judge is a type of positivist—a skeptical positivist.
Finally, I oﬀer some thoughts about the promise of a jurisprudence of skeptical positivism,
and I set the stage for a subsequent essay, examining the unfortunate reasons why most
judges reject skepticism in favor of similar (but perhaps less extreme) jurisprudential
versions of Powell’s professional hubris.37

I. MCCLESKEY V. KEMP

Warren McCleskey, a Black man, was convicted in Fulton County, Georgia, of capital
murder and armed robbery for killing a white police oﬃcer during the robbery of a fur-
niture store. The jury sentenced him to death. After exhausting his state appeals, he ﬁled a
writ of habeas corpus, challenging his sentence on the ground that the capital charging and
sentencing process in Georgia violated equal protection and the prohibition against cruel
and unusual punishment.38 In support of his claims, McCleskey’s lawyers oﬀered two
sophisticated academic studies, led by David Baldus (collectively, the “Baldus study”), of
well over two thousand murder cases handled by Georgia courts during the 1970s. The
Baldus study crunched the data in several ways, demonstrating consistent, pronounced
charging and sentencing skews based on the race of the murder victim, with one model
concluding that, even after controlling for thirty-nine nonracial variables, defendants
charged with killing white victims were more than four times as likely to receive death
as defendants charged with killing Black victims.39

35
36

Tushnet, supra note 18, at 1878.
JEFFRIES, supra note 11, at 131; Sundby, supra note 4, at 5–6 (“If one were to have wagered prior to McCleskey
which Justice would write an opinion that would generate such a backlash, the genteel Justice Powell who often
sought to thread the needle of compromise would have commanded very long odds indeed.”).
Josh Bowers, The Skeptical Unicorn (manuscript on ﬁle with author) (arguing that the moral timidity of Robert
Cover’s antislavery judges can best be explained by reference to an anti-positive institutional pride analogous to
that exhibited by Justice Powell).

38 McCleskey v. Kemp, 481 U.S. 279, 285–86 (1987).
39

Id. at 286–87.

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Writing for the majority, Powell ostensibly accepted the Baldus study’s clear-cut ﬁnd-
ings and conceded that it “demonstrate[d] a risk that the factor of race entered into some
capital sentencing decisions.”40 But he insisted that this statistically founded, systemic
skew could not support an inference “that race entered into any particular sentencing
decision.”41 The study spoke only to “the eﬀect on the average,” not “the experience of a
single individual.”42 All that mattered, constitutionally, was the decision-making and
action in this case, with this prosecutor, this trial judge, this defendant, and this victim.43
Thus, Powell concluded, the Baldus study was insuﬃcient to establish a discriminatory
purpose for an equal protection claim or a suﬃciently substantial risk of arbitrary punish-
ment for a claim of cruel and unusual punishment.44

In reaching that conclusion, Powell highlighted the individualized nature of capital
charging and sentencing decisions. As he wrote in a McCleskey memorandum, “sentencing
judges and juries are constitutionally required to consider a host of individual-speciﬁc
circumstances in deciding whether to impose capital punishment. No study can take all
of these individual circumstances into account, precisely because they are fact-speciﬁc as
to each defendant.”45 In this way, Powell drew upon a special constitutional protection
enjoyed by capital defendants as a basis to undermine McCleskey’s constitutional claims.46
Powell used constitutionally mandated discretion to downplay that concept’s precise
danger—to wit, that the “the power to be lenient is the power to discriminate.”47 In dissent,
Justice Blackmun described the illogic: “Rather than requiring a correspondingly greater
degree of scrutiny of the capital sentencing determination, the Court relies on the very fact
that this is a case involving capital punishment to apply a lesser standard of scrutiny.”48 And
Justice Brennan, in his own dissent, likewise noted the almost-tautological shortcoming of
invoking the practice of discretion to legitimize potentially problematic exercises of

40
41
42

Id. at 291 n.7.
Id.
Id. at 293 n.11; id. at 308 (“Even Professor Baldus does not contend that his statistics prove that race enters into
any capital sentencing decisions, or that race was a factor in McCleskey’s particular case. Statistics at most may
show only a likelihood that a particular factor entered into some decisions.”).
Id. at 294 (“[E]ach particular decision to impose the death penalty is made by a petit jury selected from a properly
constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on
consideration of innumerable factors that vary according to the characteristics of the individual defendant and the
facts of the particular capital oﬀense.”).
Id. at 311.
JEFFRIES, supra note 11, at 439.

44
45
46 McCleskey, 481 U.S. at 311; Gregg v. Georgia, 428 U.S. 153, 199, 203 (1976) (requiring an individualized

sentencing process as a means to permit leniency).

47 McCleskey, 481 U.S. at 312 (quoting KENNETH CULP DAVIS, DISCRETIONARY JUSTICE 170 (1973)).
48

Id. at 347–48 (Blackmun, J., dissenting); see also KENNEDY, supra note 15, at 338; infra notes 82–83, 105–106 and
accompanying text (discussing the jurisprudential concept that “death is diﬀerent”).

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discretion: “[T]he Court cannot rely on . . . safeguards in discounting McCleskey’s evidence,
for it is the very eﬀectiveness of those safeguards that such evidence calls into question.”49
Arguably, Powell did not announce a categorical ban against statistical claims of sys-
temic racism in the criminal-legal system. But it is hard to imagine a party presenting
more sophisticated empirical evidence than the Baldus study.50 In any event, defendants
typically lack the ability to access the kind of actor-speciﬁc evidence of discrimination
Powell suggested they would need to rebut the Court’s powerful presumptions of propri-
ety.51 Unsurprisingly, then, “not a single successful challenge has ever been made to racial
bias in sentencing under McCleskey v. Kemp.”52 The case marked the end of the road—at
least, as a matter of positive constitutional law—for claims of systemic racism in criminal-
legal charging and sentencing.53 Today, any aggregate statistical challenge to charging and
sentencing (capital or otherwise) is subject to McCleskey’s practically insurmountable
equal-protection standard of “exceptionally clear proof.”54 As Michelle Alexander ex-
plained, “the case was about much more than the death penalty. The real issue at hand

49
50

Id. at 338 (Brennan, J., dissenting).
KENNEDY, supra note 15, at 329–31 (describing the Baldus study as one of the “‘most complete and thorough
analys[e]s of sentencing that had ever been done,’” which showed that “the race of the victim . . . [w]as the
most consistent and powerful factor”) (quoting Richard Berk of the National Academy of Sciences’ Committee
on Sentencing Research).
Sundby, supra note 4, at 19; ALEXANDER, supra note 2, at 139; DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE
AMERICAN CRIMINAL JUSTICE SYSTEM 135 (1999) (noting that the Court’s required showing is “nearly impossible”
because defendants are barred from the requisite discovery about prosecutors’ charging decisions or juries’
sentencing deliberations).
ALEXANDER, supra note 2, at 137–39, 14 (2010). To my knowledge, the closest a defendant has come is United
States v. Clary, where a district court held that the crack sentencing guidelines violated equal protection.
However, as a matter of positive law, Clary involved a forced and overly expansive reading of discriminatory
purpose, which led promptly to reversal. United States v. Clary, 846 F. Supp. 768 (E.D. Mo. 1994) (reasoning
that “unconscious racism” may “aﬀect and inﬁltrate” state action and that a “failure to account for a
foreseeable disparate impact which would eﬀect [sic] black Americans in grossly disproportionate numbers”
may be suﬃcient to establish a discriminatory purpose, violating “the spirit and letter of equal protection”);
United States v. Clary, 34 F.3d 709 (8th Cir. 1994) (reversing). See generally COLE, supra note 51, at 136 (“In
other areas of the law, such as the rules governing . . . criminal liability . . . , engaging in conduct with
knowledge of its foreseeable consequences is suﬃcient to establish ‘intent.’ The Court, however, deﬁned
intentional discrimination for equal protection much more narrowly, as action taken to harm blacks ‘because
of, not in spite of ’ their race.”).
COLE, supra note 51, at 134 (describing McCleskey as “the last systemic challenge to capital punishment in
America”).
KENNEDY, supra note 15, at 340 (concluding that “defendants rarely, verging on never, succeed in challenging
punishments using arguments of the sort voiced by Warren McCleskey’s attorneys”).

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was whether—and to what extent—the Supreme Court would tolerate racial bias in the
criminal justice system as a whole. The Court’s answer was that racial bias would be
tolerated—virtually to any degree—so long as no one admitted it.”55 Justice Powell’s con-
cern was with bad apples rather than institutional rot. More to the point, Powell presumed
all apples were good apples, absent demonstrable individualized evidence of speciﬁc rot.
And the Court followed his lead.

Elevation of the Stakes

A.
In several ways, Justice Powell’s reasoning resembled that of antislavery judges, who, as
explored by Robert Cover, declined to obey their consciences, choosing instead to enforce
the evil fugitive slave acts. According to Cover, the ﬁrst trick of the trade was “elevation of
the stakes”—that is, exaggerating the beneﬁts of perceived “rule ﬁdelity” and “role ﬁdelity”
and the comparative costs of the moral alternative.56 In McCleskey, Powell emphasized
repeatedly the institutional advantages of rejecting a “statistical jurisprudence,” and he
minimized the moral importance of constitutionally regulating systemic racism.57 To be
fair, Powell did seem to have a sense of the scope of the problem of systemic racism, but
not the right sense—not an empathetic or aﬀective sense. In a McCleskey memorandum,
he expressed a concern that the defendant’s constitutional claims amounted to “an attack
on capital punishment itself.”58 And, in the body of the opinion, Powell explained that
McCleskey’s argument extended “to every actor in the Georgia capital sentencing process,
from the prosecutor who sought the death penalty and the jury that imposed the sentence
to the State itself that enacted the capital punishment statute and allow[ed] it to remain in

ALEXANDER, supra note 2, at 137–39; see also COLE, supra note 51, at 132, 134 (“McCleskey may be the single most
important decision the Court has ever issued on the subject of race and crime. The case’s signiﬁcance extends . . .
beyond the criminal justice system itself. Ultimately, it provides an important lesson in the limits of obtaining
judicial relief for racial inequality.”); KENNEDY, supra note 15, at 336–37 (explaining that McCleskey “resolutely
shut the door to any statistics-driven, class-based challenge to the administration of punishment”). For example,
in Stephens v. State, 456 S.E.2d 560 (Ga. 1995), the Georgia Supreme Court, relying “almost exclusively on
McCleskey v. Kemp,” refused to force the state to explain why prosecutors had charged sixteen percent of
eligible Black defendants with a habitual-oﬀender statute but only one percent of eligible white defendants.
ALEXANDER, supra note 2, at 143–44 (discussing case). Consequently, 98.4% of defendants sentenced to life in
prison under the provision were Black. Id.
COVER, supra note 6, at 5–7, 199, 229, 235, 252 (“By ‘elevation of the formal stakes,’ I mean the tendency to choose
the highest of possible justiﬁcations for the principle of formalism relied upon. By minimization of the moral
stakes, I mean the failure to raise the moral issue to the same level of principle as the formal practice.”).
Infra notes 189–196 and accompanying text (discussing Powell’s articulation and rejection of the notion of a
“statistical jurisprudence”).
Sundby, supra note 4, at 19; see also McCleskey v. Kemp, 481 U.S. 279, 313 n.37 (1987) (“[T]he dissent’s call for
greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with
the Constitution.”); id. at 367 (Brennan J., dissenting) (“The Court’s decision appears to be based on a fear that the
acceptance of McCleskey’s claim would sound the death knell for capital punishment in Georgia.”); COLE, supra
note 51, at 134 (agreeing that a holding for McCleskey would “for all practical purposes end (or at least greatly
impede the imposition of ) the death penalty in Georgia, and . . . perhaps across the country”).

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eﬀect despite its allegedly discriminatory application.”59 He worried that permitting a sta-
tistical claim today about undervalued Black victims might lead to claims tomorrow about
“statistical disparities that correlate with the race or sex of other actors in the criminal
justice system, such as defense attorneys or judges.”60

He likewise repeatedly extended the institutional implications of a ruling for McCleskey
beyond the capital context. For instance, he cited studies demonstrating racial disparities in
prison terms and explained that “if we accepted McCleskey’s claim that racial bias has im-
permissibly tainted the capital sentencing decision, we could soon be faced with similar
claims as to other types of penalty.”61 Even more pointedly, he announced that “McCleskey’s
claim, taken to its logical conclusion, throws into serious question the principles that under-
lie our entire criminal justice system.”62 And, throughout the opinion, Powell emphasized
the central role discretion plays, not only in death-penalty practice, but throughout our
criminal-legal processes—for example, that discretion is intrinsic to “our notions of criminal
justice,” that a holding for McCleskey would be “antithetical” to the “essential” and “funda-
mental role of discretion in our criminal justice system,” that prosecutors have enjoyed “tra-
ditionally wide discretion” in all charging contexts, that prosecutors’ discretionary decisions
are “at the heart of the State’s criminal justice system,” and that the “capacity of prosecutorial
discretion to provide individualized justice . . . is ﬁrmly entrenched in American law.”63

Powell was right about one thing: if discretion and discrimination do pervade criminal-
legal institutions (and they do), then opening the courthouse doors to empirically demon-
strable racial imbalances genuinely could produce a cascade of litigation. The logic is that
the Baldus study was no anomaly; if McCleskey won, other studies would show (and have
shown64) comparable racial imbalances in capital charging and sentencing, generating a
raft of additional, successful challenges. For a moderate like Powell, this was a truth too
uncomfortable to articulate too forcefully.65 Thus, Powell painted himself into a corner
of contradictions. He was trying to do two things at once: downplaying systemic racism
while playing up the systemic costs of rooting it out. He emphasized the scope of the in-
stitutional threat posed by statistical claims even as he twisted his decision in knots to wave
away the immoral signiﬁcance of those statistical claims. He ampliﬁed the value and virtue
of discretion but discounted discretion’s predictable relationship to racial discrimination,
instead insisting that we cannot “assume that what is unexplained is invidious.”66

59 McCleskey, 481 U.S. at 292.
60
61
62
63
64

Id. at 317.
Id. at 315.
Id. at 314–15.
Id. at 296–97, 311–12, 315.
Infra notes 70–71, 97–101 and accompanying text (discussing studies and cases about the inﬂuence of race on
capital charging and sentencing, before and after McCleskey).
Infra Part II (discussing Powell’s moderate sensibilities).

65
66 McCleskey, 481 U.S. at 311–13 (emphasis added).

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Notice Powell’s use of the term “unexplained.” Powell claimed to credit the Baldus
study, but, for him, its racial skews seemed to be something of a curiosity, unlikely to
be replicated or anticipated. Per Powell: “Individual jurors bring to their deliberations
qualities of human nature and varieties of human experience” that are “perhaps unknow-
able.”67 Likewise, Powell wrote that there is an “inherent lack of predictability” to these
“uniquely human judgments,” which he thought made them undeserving of constitutional
condemnation.68 But the lesson of the Baldus study is that racial skews are entirely
foreseeable. This was not an instance of an “inherent lack of predictability” about which
systemic actors must be given the beneﬁt of the doubt, absent evidence to the contrary.69
The Baldus study was (some of ) the powerful evidence to the contrary—as were studies
before and since.70 And, of course, there is ample historical and sociological evidence
beyond the Baldus study—contextual evidence that informs its ﬁndings.71

More to the point, if Powell were right that the inﬂuence of race is only irregular, then
there should have been little reason to worry about statistical claims undermining
criminal-legal institutions. Courts could readily deal with the occasional and unexpected
persuasive empirical case as it arose. And, with respect to capital practice, if constitutional
safeguards genuinely worked as well as Powell contended, then a “statistical jurispru-
dence” would produce only a trickle of challenges, not a ﬂood.72 But, of course, constitu-
tional safeguards were not working well, as the Baldus study demonstrated. Leniency was
(and is), in fact, animated by at least unconscious racial discrimination. These were the
genuinely elevated stakes, and they invite the question: why was the Court so unconcerned

67
68
69

Id. at 311 (emphasis added).
Id. at 308, 311.
KENNEDY, supra note 15, at 336–37 (“The petitioner . . . was not asking the Court to make an[] . . . assumption.
Rather, McCleskey’s attorneys oﬀered into evidence a comprehensive study showing that certain patterns in
capital sentencing cannot plausibly be explained by any variable other than race.”).
Id. at 329–31 (citing research and explaining that “[e]ven commentators who generally deride allegations of racial
discrimination in the administration of criminal law concede that in the context of capital punishment the race of
the victim consistently inﬂuences sentencing decisions”); COLE, supra note 51, at 132, 134 (discussing studies and
explaining that “[v]irtually every study of race and the death penalty has concluded that, all other things being
equal, defendants who kill white victims are much more likely to receive the death penalty”); Sundby, supra note
4, at 35 (“A long line of subsequent studies in a number of states have repeatedly conﬁrmed the Baldus study’s
ﬁndings, further cementing McCleskey’s reputation as a case that chose illusion over reality.”).
Infra notes 75–78, 115–128 and accompanying text (discussing the racialized history of criminal-legal
enforcement and adjudication).
Sundby, supra note 4, at 27 (“Coming immediately on the heels of Powell’s extensive protestations that all is well
[with capital punishment], this [fear of a cascade of statistical claims] sounds like a warning not to pull back the
curtain concealing the Wizard lest we see that the rule of law is not so magical after all . . . thus jarringly cast[ing]
doubt into the sincerity of the preceding pages that assured the reader that the system is functioning well.”); infra
notes 189–196 and accompanying text (discussing Powell’s articulation and rejection of the notion of a “statistical
jurisprudence”).

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with getting down to the business of trying to tackle institutional racism and promote
equal justice?73

Rather than address this question, Powell drew a dubious and insulting set of analogies
that elevated the stakes still further and sent the decision spiraling down artiﬁcial slippery
slopes with an almost farcical abandon. Speciﬁcally, in the last part of the decision, Powell
reasoned that race is no diﬀerent than other physical features—like good looks or hair
color—that might also correlate with higher rates of leniency.74 The absurdity, here, is
twofold. First, and most obviously, race is qualitatively diﬀerent—historically, sociologically,
and constitutionally—from attractiveness or charisma. To say otherwise crosses the line
from “naivete” to “completely tone deaf . . . willful blindness.”75 According to Brennan’s
dissent, “[o]ne could hardly contend that this Nation has on the basis of hair color
inﬂicted upon persons deprivation comparable to that imposed on the basis of race.”76
Second, McCleskey’s claim was “not speculative or theoretical” but “empirical”—not a
question of “how a system might operate, but . . . empirical documentation of how it does
operate.”77 In such circumstances, it was oﬀensive and oﬀ-base for Powell to dream up
“Cary Grant” correlations to systemic racism, “one of the nation’s core struggles since
its inception and over which a Civil War was waged.”78

Nor did Powell stop there. His insensitivity to the realities of race was, likewise, on
display with his observation that “[t]here appears to be no reason why a white defendant
in a [majority-minority] city could not make a claim similar to McCleskey’s if racial

Sundby, supra note 4, at 23 (“[A]fter Powell has listed safeguard after safeguard, one is still left asking, ‘but what
explains why someone who kills a white victim is 4.3 times more likely to be sentenced to death than if they kill a
black victim?’ Astonishingly, given that they at least give lip service to accepting the Baldus study as statistically
valid, the majority never even attempts to answer the question.”); cf. McCleskey, 481 U.S. at 367 (Brennan J.,
dissenting) (“If society were indeed forced to choose between a racially discriminatory death penalty (one that
provides heightened protection against murder ‘for whites only’) and no death penalty at all, the choice mandated
by the Constitution would be plain.”).

74 McCleskey, 481 U.S. at 317–18 (“If arbitrary and capricious punishment is the touchstone under the Eighth
Amendment, such a claim could—at least in theory—be based upon any arbitrary variable, such as the
defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some
statistical study indicates may be inﬂuential in jury decisionmaking.”).
Sundby, supra note 4, at 27, 30 (describing the reasoning in the last part of the McCleskey decision as crossing a
line from “naivete” to “willful blindness”).

76 McCleskey, 481 U.S. at 341 (Brennan J., dissenting); Sundby, supra note 4, at 30. See generally Schuette v. Coalition
to Defend Aﬃrmative Action, 572 U.S. 291, 380–81 (2014) (Sotomayor, J. dissenting) (“Race matters in part
because of the long history of racial minorities’ being denied access to the political process. . . . Race also
matters because of persistent racial inequality in society. . . . Th[e] refusal to accept the stark reality that race
matters is regrettable. . . . [W]e ought not sit back and wish away, rather than confront, the racial inequality
that exists in our society.”).

77 McCleskey, 418 U.S. at 324 (Brennan J., dissenting).
78

Sundby, supra note 4, at 30, 32 (characterizing Powell’s analogy to physical attractiveness as “Cary Grant claims”).

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disparities in sentencing arguably are shown by a statistical study.”79 We can put to one
side the fact that such discrimination against white defendants rarely (never?) exists. Here,
Powell was appealing to an anti-classiﬁcation conception of equal protection (as opposed
to anti-subordination).80 Personally, I do not agree with colorblind constitutionalism, but
Powell at least had a coherent theoretical basis for analogizing between Black and white
people. But, on that logic, why was Powell not committed to remedying racism against
both Blacks and whites? Is that not what equal protection is all about for the colorblind
constitutionalist?

In any event, all slippery slopes (real or imagined) are, ultimately, only as slick as the
Court permits them to be. The McCleskey Court had at least two “doctrinal exit ramps” to
avoid the slide (or to keep from fabricating slopes in the ﬁrst instance).81 A frank but
credible option would have been to lower the stakes by limiting statistical claims to
death-penalty practice.82 Likewise, Powell should and could have conﬁned constitutional
analysis to race and other suspect classiﬁcations. Brennan wrote:

The Court’s projection of apocalyptic consequences for criminal sentencing is . . .
greatly exaggerated. The Court can indulge in such speculation only by ignoring
its own jurisprudence demanding the highest scrutiny on issues of death and race.
As a result, it fails to do justice to a claim in which both those elements are
intertwined—an occasion calling for the most sensitive inquiry a court can conduct.83

But Powell made no serious effort to cabin his decision. He insisted speciously that he
could find “no limiting principle to the type of challenge by McCleskey,” even as several
were obviously available.84 He thereby unduly recast statistical claims as an existential
institutional threat.

This was not just sloppy judicial craftsmanship but, according to Randall Kennedy, a
“demagogic assertion” that any other conclusion “would necessarily open a Pandora’s box
from which limitless disruption would ensue.”85 Powell had abandoned his claimed
characteristic “cautious” approach in favor of a “somewhat shocking” assertion that
“the-sky-will-fall”—a contention that “simply does not ring true on either a constitutional

79 McCleskey, 481 U.S. at 316 n.39.
80

On the debate between anti-classiﬁcation and anti-subordination approaches, see generally Reva B. Siegel,
Equality Talk: Antisubordination and Anticlassiﬁcation Values in Constitutional Struggles over Brown, 117
HARV. L. REV. 1470 (2003).
Sundby, supra note 4, at 30.
Supra notes 47–49; infra notes 83, 105–106, and accompanying text.

81
82
83 McCleskey, 481 U.S. at 342 (Brennan J., dissenting).
84
85

Id. at 317 (majority opinion).
KENNEDY, supra note 15, at 337; infra notes 189–196 and accompanying text (discussing Powell’s fears that a
“statistical jurisprudence” would undermine traditional judicial processes).

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or emotional level.”86 The reader is left with the impression that an honest reckoning with
race was just too daunting for Powell. In modern parlance, Powell believed that systemic
racism was “too big to fail.”87 So, he chose an “illusion of the rule of law” over reality,
which is precisely what Brennan had in mind when he dubbed Powell’s approach “a fear
of too much justice.”88 By hiding the ball—or, rather, rolling it down fantastical slippery
slopes—Powell ignored the fact that pervasive racial bias in the administration of the death
penalty ought to be “precisely the type of situation that the Eighth Amendment and Equal
Protection Clause should be patrolling.”89

The irony is that Powell did not need to elevate the stakes: the struggle for racial equal-
ity and against subordination is the deﬁning feature of the Black experience in America.
According to Brennan,

[t]he prospect that there may be more widespread abuse than McCleskey documents
may be dismaying, but it does not justify complete abdication of our judicial role.
The Constitution was framed fundamentally as a bulwark against governmental
power, and preventing the arbitrary administration of punishment is a basic ideal
of any society that purports to be governed by the rule of law.

To be sure, dismantling institutional racism would be a colossal and probably impossible
undertaking, constitutionally or otherwise. But there were ways, jurisprudentially, for the
Court to move matters forward—even if incrementally only.90 What Powell lacked was the
moral courage—“the will” to try.91 Instead, he deﬂected from and ultimately abandoned
the constitutional project before it could even start.

B. Retreat to Formalism
Shortly after Justice Powell’s death, Gerald Gunther praised him as a judge who “never
disguised the diﬃculties, as lazy judges do who win the game by sweeping all the chessmen
oﬀ the table.”92 In McCleskey, however, Powell did just that. He retreated to a hollow

86
87

Sundby, supra note 4, at 28.
Infra note 136 and accompanying text. See generally Philip E. Strahan, Too Big to Fail: Causes, Consequences, and
Policy Responses, 5 ANN. REV. FIN. ECON. 43 (2013).

89
90

88 McCleskey, 481 U.S. at 339 (Brennan J., dissenting); Sundby, supra note 4, at 28–29 (“Powell is saying that we have
a choice—we either can protect the illusion of the rule of law or we can acknowledge that racial bias is indeed
infecting the system—and we choose to maintain illusion over confronting reality.”).
Sundby, supra note 4, at 29.
Infra notes 102–110 and accompanying text (detailing the alternative jurisprudential options available to the
McCleskey Court pursuant to positive constitutional law).
KENNEDY, supra note 15, at 340; COLE, supra note 51, at 139; infra notes 282–287 and accompanying text
(distinguishing between ability and will ).
Gerald Gunther, Lewis F. Powell, Jr.—A Fine Judge, A Remarkable Human Being, 99 COLUM. L. REV. 547, 551
(1999) (quoting Learned Hand).

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conception of formalism that allowed him to convey the “false impression that the case
[wa]s easy.”93 In that sense, he behaved like Cover’s antislavery judges, who reached
decisions “as if they were acting under the inexorable force of crystal clear commands,
even when they weren’t.”94 This is not to say that the McCleskey decision lacked a consti-
tutional foundation. The holding fell “well within the ambit of expectations reasonably
derived from prior rulings.”95 Still, it was not preordained; “reasonable people could
disagree” about what positive law demanded.96

On the one hand, Powell had precedential support for the proposition that a statistical
study could not establish a constitutional claim.97 Courts had taken up the question
before—albeit when presented with less sophisticated empirics. For instance, in Hampton
v. Commonwealth (the “Martinsville Seven” case),98 the Virginia Supreme Court rejected
social science demonstrating that capital punishment for rape had been applied almost
exclusively to Black men and boys convicted of crimes against white women.”99 Likewise,
in State ex rel. Copeland v. Mayo, the Florida Supreme Court refused to infer anything
about the defendant’s individual case from aggregate statistics about the inﬂuence of race
on capital punishment for rape: “The facts in none of these cases are shown to be remotely
relevant to the case at bar. . . . To a sociologist or psychologist in some ﬁelds of research
they would no doubt have value, but in a court of law as presented they are devoid of force
or eﬀect.”100 Even Justice Blackmun, who dissented in McCleskey, echoed the same senti-
ment during his time as an Eighth Circuit judge: “What we are concerned with here is [the
defendant’s] case and only [the defendant’s] case. . . . We are not yet ready to condemn
and upset the result reached in every case of a negro rape defendant in the State of
Arkansas on the basis of broad theories of social and statistical justice.”101

94
95
96

97
98
99

KENNEDY, supra note 15, at 335; see also COVER, supra note 6, at 3 (noting that his antislavery judges applied
purported rules mechanically and behaved as if “the law is embodied in a readily identiﬁable source,” even
when its application was not obvious).
COVER, supra note 6, at 232.
KENNEDY, supra note 15, at 340.
COLE, supra note 51, at 137 (“There was nothing in the text of the Constitution, the history of its framing, or the
Court’s prior doctrine which required the Court to resolve either [equal protection or cruel and unusual
punishment] for or against McCleskey.”); KENNEDY, supra note 15, at 340; but cf. McCleskey v. Kemp, 481
U.S. 279, 345 (1987) (Blackmun, J., dissenting) (describing the majority’s holding as a “departure from . . .
well-developed constitutional jurisprudence”).
KENNEDY, supra note 15, at 340.
Hampton v. Commonwealth, 58 S.E.2d 288 ( Va. 1950).
KENNEDY, supra note 15, at 312–16 (“The statistics oﬀered by the defendants should have been deemed
suﬃciently arresting to require explanation.”); ERIC W. RISE, THE MARTINSVILLE SEVEN (1995).
State ex rel. Copeland v. Mayo, 87 So. 2d 501, 503 (Fla. 1956).

100
101 Maxwell v. Bishop, 398 F.2d 138, 147 (8th Cir. 1968); HUGO ADAM BEDAU, THE DEATH PENALTY IN AMERICA:
CURRENT CONTROVERSIES 250 (1997) (“The argument advanced by McCleskey’s attorneys was essentially a
vastly more elaborate version of the argument that inaugurated the constitutional attack on the death penalty
two decades earlier in Maxwell v. Bishop.”).

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On the other hand, only one year before McCleskey, Justice Powell himself had
authored the Court’s opinion in Batson v. Kentucky, which held, in the narrow context
of jury selection, that statistical patterns could be used to make out a prima facie claim
of a discriminatory purpose, compelling the government thereafter to articulate race-
neutral reasons for its apparently race-based exercise of peremptory strikes of prospective
jurors.102 And Powell had even suggested, in dissent in Furman v. Georgia, that future
defendants might oﬀer an equal protection argument, “not presented by any of the peti-
tioners today,” that there existed, by race, “substantial statistical evidence . . . to show a
pronounced [systemic] disproportion” in administration of the death penalty.103 In
McCleskey, Powell could have invoked his Furman dicta to extend his Batson approach
to statewide and countywide charging and sentencing patterns, at least in the capital con-
text, on the well-developed constitutional theory that “death is diﬀerent.”104 As Brennan
explained, there is “a qualitative diﬀerence between death and any other permissible form
of punishment,” and hence “a corresponding diﬀerence in the need for reliability in the
determination that death is the appropriate punishment in a speciﬁc case.”105 Nevertheless,
without much explanation, Powell “g[a]ve new meaning” to the term “death is diﬀerent” by
imposing a greater burden on the defendant, requiring a showing of “exceptionally clear
proof” of a discriminatory purpose to make out an equal protection claim.106

A bigger surprise, perhaps, is how summarily Powell rejected McCleskey’s claim of
cruel and unusual punishment. In a move that, at once, elevated the stakes and retreated

102

103
104

Batson v. Kentucky, 476 U.S. 79, 93 (1986) (“Total or seriously disproportionate exclusion . . . is itself such an
unequal application of the law as to show intentional discrimination.”); COLE, supra note 51, at 136 (“In other
areas of the criminal law, such as the selection of jury venires and the use of peremptory strikes, the Court has
permitted such inferences to be drawn from statistical patterns.”).
Furman v. Georgia, 408 U.S. 238, 449 (1972) (Powell, J., dissenting).
See, e.g., Turner v. Murray, 476 U.S. 28, 35 (1986) (“The risk of racial prejudice infecting a capital sentencing
proceeding is especially serious in light of the complete ﬁnality of the death sentence.”); Woodson v. North
Carolina, 428 U.S. 280, 303–04 (1976) (“[T]he penalty of death is qualitatively diﬀerent from a sentence of
imprisonment, however long. Death, in its ﬁnality, diﬀers more from life imprisonment than a 100-year
prison term diﬀers from one of only a year or two. Because of that qualitative diﬀerence, there is a
corresponding diﬀerence in the need for reliability in the determination that death is the appropriate
punishment in a speciﬁc case.”); see also COLE, supra note 51, at 138 (explaining that the Court “had long
recognized that ‘death is diﬀerent,’ requiring heightened safeguards”); McCleskey v. Kemp, 481 U.S. 279, 340,
364 (1987) (Brennan, J., dissenting) (citing Batson for the proposition that McCleskey’s statistical evidence
“demands an inquiry into the prosecutor’s actions” and noting that “this Court has consistently
acknowledged the uniqueness of the punishment of death”).

105 McCleskey, 481 U.S. at 340 (Brennan J., dissenting).
106

Id. at 297 (“Implementation of these laws necessarily requires discretionary judgments. Because discretion is
essential to the criminal justice process, we would demand exceptionally clear proof before we would infer
that the discretion has been abused.”); KENNEDY, supra note 15 at 332–33 (describing McCleskey’s heightened
standard); supra note 54 and accompanying text.

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to formalism, Powell insisted that the Court should be cautious to exercise judicial
restraint because “the Eighth Amendment is not limited in application to capital punish-
ment, but applies to all penalties.”107 But Eighth Amendment case law (more so than any
other constitutional doctrine) has drawn a sharp line between noncapital and capital
cases.108 And not only does the Eighth Amendment treat the death penalty with greater
scrutiny, but, contrary to equal protection doctrine, it also demands no proof of a discrim-
inatory purpose; a defendant need only demonstrate a “constitutionally unacceptable risk”
of “arbitrary and capricious” punishment.109 Because the Court has never quantiﬁed what
counts as a “constitutionally unacceptable risk,” it could have readily held that the Baldus
study sailed over that bar.110

With respect to both constitutional claims, the question of whether and to what degree
Powell retreated to formalism turns on our deﬁnition of that term—a debate that is
largely, but not completely, beyond the scope of this essay. If formalism is, in its most basic
form, a decision “logically deduced from . . . the rules and the facts . . . alone,”111 then
Powell’s opinion unquestionably trended toward the formal. Formal decisions tend to be
informed by a more “limited set of materials . . . considered as relevant,”112 and, along
this dimension, Powell was positively stingy, almost to the point of obtuseness. The facts
that Powell considered relevant were quite narrow. Powell insisted that McCleskey had
“relie[d] solely on the Baldus study.”113 And, even with respect to the study, Powell
discounted the statewide and countywide statistics because they did not resolve whether
“the decisionmakers in his case acted with discriminatory purpose.”114 But, perhaps more
importantly, Powell uncoupled the Baldus study from its political, social, cultural, and

107 McCleskey, 481 U.S. at 315.
108

See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976). See generally
William W. Berry III, Cruel and Unusual Non-Capital Punishments, 58 AM. CRIM. L. REV. 1627 (2021); Eva S.
Nilsen, Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse, 41
U.C. DAVIS L. REV. 111, 116, 151–53 (2007).
Booth v. Maryland, 482 U.S. 496, 503 (1987); Caldwell v. Mississippi, 472 U.S. 320 (1985); McCleskey, 481 U.S. at
324 (Brennan, J., dissenting) (“Defendants challenging their death sentences . . . never have had to prove that
impermissible considerations have actually infected sentencing decisions. We have required instead that they
establish that the system under which they were sentenced posed a signiﬁcant risk of such an occurrence.”);
COLE, supra note 51, at 136 (“Unlike his equal protection claim, McCleskey’s Eighth Amendment claim did
not require a ﬁnding of invidious intent. Arbitrary punishment is ‘cruel and unusual’ regardless of intent.”).
COLE, supra note 51, at 138 (“The question of what amounts to a ‘constitutionally unacceptable risk’ [in
particular] has no determinate answer.”).

109

110

111 Michael S. Moore, The Semantics of Judging, 54 S. CAL. L. REV. 151, 155−60 (1981) (“[A] formalist judge has an

extremely limited set of materials to consider as relevant to his decision in a particular case.”).
Id.

112
113 McCleskey, 481 U.S. at 292–93 (emphasis added).
114

Id. (“McCleskey . . . oﬀers no evidence speciﬁc to his own case that would support an inference that racial
considerations played a part in his sentence.”).

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historical backdrop. He disregarded the well-established qualitative narrative behind the
Baldus study’s quantitative ﬁndings. That narrative is, of course, the story of racial subor-
dination in America and its criminal-legal systems.

Powell did not need a critical race theorist to educate him on what he was missing,
though there were (and are) plenty who could have done so.115 He could simply have
turned to the McCleskey dissents. Brennan, for his part, reasoned that “the evaluation
of evidence suggesting . . . a correlation must be informed not merely by statistics, but
by history and experience.”116 And, in much of his dissent, he detailed the ugly and on-
going history of racial subordination that informed the Baldus study. Brennan noted, for
instance, that Georgia once had a de jure “dual system” of criminal punishment with a
“lineage traced back to the time of slavery,” which continued through the Jim Crow era
and “is still eﬀectively in place.”117 Randall Kennedy wrote:

The Court’s suggestion that the legacy of Georgia’s history shines no light on the
Baldus statistics is both laughable and tragic. . . . [Powell did not] want to concede
facts that indicate[d] that the Court was knowingly willing to countenance a regime
of capital punishment in which race signiﬁcantly inﬂuenced decisions as to who
would be spared and who would be killed. So Powell acted as if the Baldus study
uncovered a minor discrepancy.118

To all of this, Powell reasoned only that “the history of racial discrimination in this
country” must be “reasonably contemporaneous with the challenged decision” to have
“probative value.”119 The Court “cannot accept,” Powell concluded baldly, “oﬃcial actions

115

See, e.g., ALEXANDER, supra note 2; Dorothy E. Roberts, Foreword: Abolition Constitutionalism, 133 HARV. L. REV.
1, 106 (2019) (“[T]oday’s carceral punishment system can be traced back to slavery and the racial capitalist
regime it relied on and sustained.”); Angela Y. Davis, From the Prison of Slavery to the Slavery of Prison:
Frederick Douglass and the Convict Lease System, in THE ANGELA Y. DAVIS READER 76 ( Joy James ed. 1998).

116 McCleskey, 481 U.S. at 341 (Brennan J., dissenting). See generally Charles L. Barzun, The Genetic Fallacy and a
Living Constitution (manuscript on ﬁle with author) (“[H]istorical explanations do, or should, matter. . . . [T]he
historical explanation of a practice is relevant to an assessment of its present value.”).

117 McCleskey, 481 U.S. at 329–30, 332–33 (Brennan J., dissenting) (describing nineteenth-century Georgia law that
provided for mandatory capital punishment for Black murderers and Black men who raped white women, while
rapes of Black women were punishable “by ﬁne and imprisonment, at the discretion of the court”); cf. United
States v. Clary, 34 F.3d 709 (1994) (“That black people have been punished more severely for violating the same
law as whites is not a new phenomenon. A dual system of criminal punishment based on racial discrimination
can be traced back to the time of slavery.”); Roberts, supra note 115, at 105–06 (tracing unequal punishment
practices from slavery through the Jim Crow era through the present day).
KENNEDY, supra note 15, at 336–38. I am reminded, here, of Justice Marshall’s observation that sometimes, when
one cannot account for the reasons for racially skewed state action, the explanation is “less likely to be
inarticulable than unspeakable.” Florida v. Bostick, 501 U.S. 429, 441 n.1 (1991) (Marshall, J., dissenting).

118

119 McCleskey, 481 U.S. at 298 n.20.

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taken long ago as evidence of current intent.”120 In this way, Powell minimized the sig-
niﬁcance not only of history but also the Baldus study. He refused to recognize how the
history informed the statistics and, likewise, how the statistics were evidence that the his-
tory was not ancient but rather ongoing.

By divorcing the Baldus study from its context, Powell rendered its ﬁndings not only
irrelevant but somewhat nonsensical.121 This marked something of a shift for Powell. He
typically aspired to bring to his jurisprudence a kind of commonsense reasonableness. As
Mark Tushnet explained, “Powell’s centrism amounted to taking the Constitution to mean
what any person as reasonable as Powell thought it to mean.”122 This is, in its own right, a
somewhat problematic account. Our subjective notions of reasonableness and common
sense are colored heavily by our experiences or lack thereof.123 When Justice Stewart wrote
of obscenity that “I know it when I see it,” he was declaring dispositive his own narrow
(that is to say, privileged and male) experiences and perspective on a contested moral
question that aﬀects more directly systemic outsiders with comparatively less political
power and with diﬀerent experiences and perspectives that traditionally have been (and
continue to be) jurisprudentially underappreciated.124 This is precisely why it is so critical
that state and federal benches include a diversity of judges whose breadth of backgrounds
mirrors society more broadly—something Justice Sotomayor was expressing, however
clumsily, with her comment: “I would hope that a wise Latina woman with the richness
of her experiences would more often than not reach a better conclusion than a white male
who hasn’t lived that life.”125 But no matter a judge’s distinct experiences or perspective,

120
121

122
123

124

125

Id.
Supra notes 66–68 and accompanying text (describing Powell’s eﬀorts to paint the Baldus study’s ﬁnding as
“unexplained” and “unknowable”).
Tushnet, supra note 18, at 1861, 1873–75.
Supra notes 17–19, 26–36; infra notes 203–205, 209–220, 242–259 and accompanying text (describing Powell’s
“limited social vision” and its inﬂuence on his jurisprudence); see also Dan M. Kahan et al., Whose Eyes Are You
Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837, 852 (2009)
(discussing the theory of “cultural cognition,” which posits that normative beliefs are products of experience).
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (“I shall not today attempt further to deﬁne the kinds of material I
understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly
doing so. But I know it when I see it.”); Catharine A. MacKinnon, Not A Moral Issue, in APPLICATIONS OF FEMINIST
LEGAL THEORY TO WOMEN’S LIVES: SEX, VIOLENCE, WORK, AND REPRODUCTION 38 (D. Kelly Weisberg & Ronnie
Steinberg eds., 1996) (“If I ask, from the point of view of women’s experience, does he know what I know
when I see what I see, I ﬁnd that I doubt it, given what’s on the newsstands. . . . To me, his statement is
precisely descriptively accurate. . . . That is, the obscenity standard—in this it is not unique—is built on what
the male standpoint sees.”).
Ta-Nehesi Coates, About That “Wise Latina” Statement, ATL. (May 27, 2009) (criticizing but also contextualizing
Sotomayor’s comment). See generally Brandon Hasbrouck, Movement Judges, 97 N.Y.U. L. REV. 631 (2022).

140

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there are circumstances where the social meaning and import of a particular cultural phe-
nomenon or legal practice ought to be obvious to anyone exercising even a modicum of
moral imagination and good-faith common sense. Still, there is great virtue and value in
our commonsense eﬀorts to uncover the social meaning of a given cultural or legal
practice.

Consider, on this score, Charles Black’s discussion of the obviousness of the insidious

and invidious nature of de jure discrimination:

That a practice, on massive historical evidence and common sense, has the designed
and generally apprehended eﬀect of putting its victims at a disadvantage, is enough
for law. At least it always has been. . . . The Court that refused to see inequality . . .
would be making the only kind of law that can be warranted outrageous in
advance—law based on self-induced blindness, or ﬂagrant contradiction of known
fact.126

Black was articulating a commonsense conception of systemic racism—a folk conception
shared by Justice Harlan, who, in his Plessy v. Ferguson dissent, said of systemic racism
that “[e]very one knows” the signiﬁcance of race in America and that “[n]o one would be
so wanting in candor” as to ignore the social fact that the “arbitrary separation of citizens,
on the basis of race” is a means to brand the subordinated group with “a badge of servi-
tude.”127 And Justice Brennan, in his McCleskey dissent, likewise recognized what ought to
have been plain to Powell—speciﬁcally, that “[t]he conclusions drawn from McCleskey’s
statistical evidence are . . . consistent with the lessons of social experience . . . [a] determi-
nation . . . [that] is at its core an exercise in human moral judgment, not a mechanical
statistical analysis.”128

In McCleskey, however, either Powell abandoned his professed common sense, or
common sense abandoned Powell. He disregarded race and racism as functional and
meaningful social facts. And he discarded his conventional reputation for incrementalism
in favor of a formal (practically rule-bound) rejection of systemic statistical claims. This,
then, is how Powell retreated to formalism—by forsaking what his most-ardent champions
have claimed were his most characteristic and attractive jurisprudential qualities.129

126

Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 426, 428 (1960) (discussing
Brown v. Bd. of Educ., 347 U.S. 483 (1954)).
Plessy v. Ferguson, 163 U.S. 537, 557, 562 (1896) (Harlan, J., dissenting).

127
128 McCleskey v. Kemp, 481 U.S. 279, 328, 334–35 (1987) (Brennan, J., dissenting) (emphasis added).
129

Infra notes 146–147 and accompanying text and Part II (examining in more detail Powell’s jurisprudential and
dispositional qualities).

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C. Ascription of Responsibility Elsewhere
Justice Powell’s biographer, John Jeﬀries, wrote that Powell bore an “uneasiness about
personal responsibility” and would “attempt to distance himself from the consequences of
his own acts.”130 That trait was on full display in McCleskey. To the extent Powell even
acknowledged systemic racism, he framed it as a political question:

McCleskey’s arguments are best presented to the legislative bodies. It is not the
responsibility—or indeed even the right—of this Court to determine the appropriate
punishment for particular crimes. It is the legislatures, the elected representatives of
the people, that are constituted to respond to the will and consequently the moral
values of the people.131

Such efforts to ascribe responsibility to the populace and its representatives come straight
from the playbook of Robert Cover’s antislavery judges, who washed their hands of the
immoral stain of the fugitive slave acts by pinning the evil elsewhere.132 Consider, by way
of example, Miller v. McQuerry, where Justice John McLean announced:

With abstract principles of slavery, courts called to administer this law have nothing
to do. It is for the people who are sovereign and their representatives. . . . [T]he hard-
ship and injustice supposed arises out of the institution of slavery, over which we
have no control. Under such circumstances, we cannot be held answerable.133

But, of course, there was nothing morally “abstract” about the “principles of slavery,” just
as there was nothing “unexplained” about the Baldus study.134 This hands-oﬀ
approach—this feigned incomprehension of evidence of highly disturbing, racist institu-
tions and practices—translated to what Cover called “a broad and almost universal judicial
acquiescence to [political] power.”135 Or, as David Cole said of McCleskey, “In the face of a
problem much bigger than it felt it could handle, the Court . . . deﬁned the problem away
by declaring it not constitutional in nature and deferred to the legislature.”136 And

JEFFRIES, supra note 11, at 429.

130
131 McCleskey, 481 U.S. at 319 (internal quotation marks and citations omitted).
132

COVER, supra note 6, at 3, 229, 235–36 (noting that his antislavery judges operated according to the view that “the
will behind the law is . . . clearly not that of the judges” but is rather the “imperial will,” and that the judge “is a
mechanical instrument of the will of others” and “is not responsible for the content of the law but [only] for its
straightforward application.”).

133 Miller v. McQuerry, 17 F. Cas. 332, 339, 340 (C.C.D. Ohio 1853) (emphasis added).
134
135
136

Supra notes 66–68 and accompanying text.
COVER, supra note 6, at 236.
COLE, supra note 51, at 139; see also supra note 87 and accompanying text (discussing the perception that
systemic racism might be “too big to fail”).

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Powell’s deferential conception of separation of powers extended likewise to the
executive—namely, charging prosecutors who he noted enjoy “traditionally wide discre-
tion.”137 On Powell’s reasoning, it would risk “impropriety” to ask prosecutors “to defend
their decisions to seek death penalties, often years after they were made.”138

“The judicial conscience is an artful dodger,” wrote Robert Cover. “Before it will con-
cede that a case is one that presents a moral dilemma, it will hide in the nooks and
crannies of the professional ethics, run to the caves of role limits, seek the shelter of sep-
aration of powers.”139 Notice how Powell subtly dodged accountability in McCleskey. On
ﬁrst pass, the opinion strikes the reader as a judicial command to particularize justice.
After all, the Baldus study was insuﬃcient precisely because its aggregate statistics “could
not say anything in particular about . . . the circumstances of his conviction but only about
the general pattern of capital sentencing in Georgia and Fulton County.”140

However, the McCleskey Court made no move to constitutionally guarantee an indi-
vidualized approach to charging and sentencing; rather, the Court abandoned oversight,
ascribing responsibility for individualization to institutional stakeholders’ notions of indi-
vidualized justice (notwithstanding persuasive statistical evidence that these notions
skewed systemically and systematically by race). According to Cole,

[d]iscretion is constitutionally required in order to provide individualized justice. In
McCleskey, however, the Court confronted evidence that discretion was being used
not to make individualized judgments, but to discriminate on group-based grounds.
Race discrimination is the very antithesis of individualized judgment; it judges an in-
dividual not on the basis of his personal traits, but on the basis of group identity. Yet
the majority determined that this was an inevitable cost of discretion.141

This is what Brennan meant when he accused Powell of getting matters backward:
“Discretion is a means, not an end.”142 Powell gave prosecutors and juries free reign to
indulge their implicit and explicit (but quiet) biases, to engage in unbalanced groupthink,
and to act on these impulses in a manner that made it highly predictable that the wages of

137 McCleskey v. Kemp, 481 U.S. 279, 296 (1987) (internal quotation marks omitted).
138
139
140
141

Id.
COVER, supra note 6, at 201.
JEFFRIES, supra note 11, at 438; see also supra notes 40–44 and accompanying text.
COLE, supra note 51, at 137 (emphasis supplied); see also McCleskey, 481 U.S. at 336 (Brennan, J., dissenting)
(“Decisions inﬂuenced by race rest in part on a categorical assessment of the worth of human beings according to
color, insensitive to whatever qualities the individuals in question may possess.”).

142 McCleskey, 481 U.S. at 336 (Brennan J., dissenting) (explaining that when courts fail to constitutionally regulate

discretion appropriately, “the very end that discretion is designed to serve is being undermined”).

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victimizing the wrong (or right) race of a person would be death (or life or better). Mean-
while, Powell imposed on the ostensibly constitutionally protected party—the defendant—
the burden to particularize the constitutional claim—to show that “the decisionmakers in
his case acted with discriminatory purpose” or substantially risked arbitrary or capricious
punishment.143

Institutional stakeholders deserved no such deference. The Baldus study revealed, pre-
dictably, that the Georgia capital sentencing process was less a dice throw than a weighted
roulette wheel with a consistent bias against black. Justice Brennan explained, “At some
point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely
to sentence him to die. A candid reply to this question would have been disturbing. . . .
[T]here was a signiﬁcant chance that race would play a prominent role in determining
if he lived or died.”144 But no matter, for Powell. This was “a political, not a legal ques-
tion.”145 He left individualization to other actors and pinned on them the moral (but not
legal) blame for failing to deliver it.

Powell once insisted that he was opposed to “immutable line drawing.”146 Yet, in
McCleskey, he engaged in just that: he drew a practically immutable line against statistical
constitutional claims of systemic racism in the criminal-legal system. He took a “doubly
disfavored minority” defendant—a Black man convicted of capital murder—and aban-
doned constitutional review in favor of majoritarian political processes, thereby outsour-
cing decisions to individualize (or, alternatively, to lump and stereotype).147 By doing so,
he lost sight of the fact that constitutional equal protection is the judiciary’s responsibility;
it cannot be ascribed elsewhere.

II. A LOVE OF LAW

There is no set deﬁnition of judicial pragmatism, but it entails, at least, an eﬀort to “do the
best . . . for the future, in the circumstances, unchecked by any need to respect or secure
consistency in principle.”148 On that deﬁnition, Justice Powell probably qualiﬁed.
Throughout his career he sought to “balance” competing interests with a ﬂexible

143
144
145
146
147

148

Id. at 292–93 (emphasis added).
Id. at 321 (Brennan, J., dissenting).
COLE, supra note 51, at 138–39.
Argersinger v. Hamlin, 407 U.S. 25, 49 (1972) (Powell, J., concurring).
COLE, supra note 51, at 138–39 (“To tell a member of a doubly disfavored minority such as Warren McCleskey to
seek his remedy through the majoritarian process is to relegate him to no remedy at all.”).
RONALD DWORKIN, LAW’S EMPIRE 161 (1986) (oﬀering this deﬁnition of pragmatic judging).

144

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“open-mindedness, non-dogmatic even handedness, and incessant probing.”149 Jeﬀries
explained that

he thought it necessary that law should change, that it should ﬁt the facts and re-
spond to the lessons of experience. He was too practical to think otherwise. Never
much interested in ideological abstractions, Powell readily accepted the idea that the
ultimate test of law was how it worked. . . . If the law did not work, if it failed its
objectives and imposed unintended costs, then it should change. . . . [T]he only ex-
ternal standard for evaluating legal rules was to look at the results . . . judged
pragmatically.150

In a fashion that presaged the minimalism of Justice Sandra Day O’Connor, Powell
took “one case at a time” and resisted the idea that “precedent was sacrosanct or that
law could be isolated from social concerns.”151 Powell took pride—as a lawyer and
judge—in “doing justice case by case,” even if it meant “zigzagging back and forth . . .
based on his personal sense of justice without adhering to a clear, logically consistent con-
stitutional philosophy.”152 In Powell’s own estimation: “I never think of myself as having a
judicial philosophy. . . . I have in mind that each one of these cases is enormously impor-
tant to the parties, particularly to the defendant in a criminal case. I try to be careful, to do
justice to the particular case.”153 This was an all-things-considered style he brought even
to other capital cases where, John Jeﬀries noted, he was sometimes “at his most particu-
laristic,” drawing “hair-splitting distinctions” about “the rare case . . . so outrageous and so
serious . . . as to justify society’s ultimate penalty.”154 By this undertheorized approach to
constitutional law, Powell situated himself squarely at the Supreme Court’s “center of
gravity” as its “guiding spirit” and “most characteristic voice.”155

149

150

151
152

153
154
155

JEFFRIES, supra note 11, at 12, 43, 561; Gunther, supra note 92, at 547–48; Tushnet, supra note 18, at 1873–74
(describing Powell’s “balancing” as “his bulwark against a rule-based formalism”).
JEFFRIES, supra note 11, at 41–43, 561 (describing Powell as capable of distinguishing “ﬂexibility from weakness
and fanaticism from belief”).
Id. at 43; see also CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT (2001).
JEFFRIES, supra note 11, at 403, 470, 558 (explaining that Powell’s opinions were a “mosaic of accommodation,
highly diﬀerentiated and strongly variegated,” and once describing Powell as perhaps “trying to draw too ﬁne a
line”); Tushnet, supra note 18, at 1855; Stuart Taylor, Jr., Powell on His Approach: Doing Justice Case by Case,
N.Y. TIMES (July 12, 1987), https://www.nytimes.com/1987/07/12/us/powell-on-his-approach-doing-justice-case
-by-case.html.
Taylor, supra note 152.
JEFFRIES, supra note 11, at 436 (discussing Coker v. Georgia, 433 U.S. 584 (1977)); Taylor, supra note 152.
JEFFRIES, supra note 11, at 12, 404–05 (explaining that Powell was in the majority more than any of his
contemporaries and noting that “[i]n nearly ﬁve hundred decisions involving the criminal law, Powell
disagreed with the outcome fewer than one time in ten”).

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Powell’s pragmatism was a product of his upbringing and training. In law school, he
rejected “rule-bound formalism” in favor of a “sociological jurisprudence.”156 Under the
tutelage of legal realists, such as Roscoe Pound and Felix Frankfurter, he took seriously
“the idea that legal rules and decisions could be looked at practically, as they were applied,
according to the eﬀects they produced on society.”157 He was not, however, a thorough-
going legal realist, much less a radical.158 He believed that legal rules were eminently
decipherable; he distrusted “the wide-open spaces of constitutional law” and “came to
the Court with a simple faith in the clarity and integrity of constitutional law.”159 He
“embraced law chieﬂy as a tradition rather than as an instrument of change.”160 In this
way, he was “predisposed toward the status quo” and “instinctively recoiled from extreme
positions.”161

Powell, likewise, had a reputation as a decent person of “great modesty” who was “soft-
spoken” and “deeply rooted in Virginia culture” and its gentility.162 His former clerk and
longtime mentee and friend, Judge J. Harvie Wilkinson III, described him as “a very kind
man with very high standards,” who “was like a second father” and “never once snapped at
me or raised his voice.”163 But Powell also exhibited a formality and propriety that extend-
ed even to family dinners that Wilkinson recalled attending as a child—evenings where
the seating arrangement was orchestrated carefully to reﬂect a “sense of hierarchy.”164
Wilkinson recounted that, notwithstanding his lifelong relationship to the man, “Justice
Powell never once asked that I call him by his ﬁrst name.”165 In other words, Powell
possessed a patrician temperament, but it was tempered, in turn, by a degree of civility,
geniality, aﬀection, equanimity, grace, and charitability.166

A. Powell’s Pride
Justice Powell was ambitious, but he remained always “ineradicably unsure” of his own
talent and worth.167 Plagued by “genuine self-doubt,” he even tried several times to

156
157
158

159
160
161
162
163
164
165
166

167

Id. at 41–43.
Id.
Id. at 41–42 (noting that although Powell was inﬂuenced by legal realism, “he did not share Frankfurter’s impulse
for reform”).
Id. at 409–10.
Id. at 42.
Id. at 42, 170; Tushnet, supra note 18, at 1854.
Gunther, supra note 92, at 547–48.
J. Harvie Wilkinson III, Lewis F. Powell—A Personal View, 65 WASH. & LEE L. REV. 3–6 (2008).
Id. at 3–4.
Id. at 6–7.
JEFFRIES, supra note 11, at 562 (quoting Wilkinson’s description of Powell as a judge “leavened by decency,
conscientious in detail and magnanimous in spirit, [and] solicitous of personal dignity”).
Id. at 8, 534 (describing Powell as “quiet” and “self-deprecating” and noting that “[h]is long string of
achievements were not the fruits of easy conﬁdence, but of ceaseless struggle against self-doubt”).

146

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remove himself from consideration for the Supreme Court nomination.168 Still, there were
beliefs about which he was never in doubt, never unsure—to wit, his “faith in legal insti-
tutions” and his conviction that the legal profession was “the greatest of them all.”169 As a
young man, Powell recognized that these were the people who got things done—“the peo-
ple at the center of the stage.”170 And his faith in the profession and its people only “grew
stronger as the years went by.”171 This translated to “a strong sense of judicial obliga-
tion.”172 As Jeﬀries put it, “‘Duty’ was the magic word. If there was one constant in
Powell’s life, it was his sense of duty.”173

This is a topic explored at some length by Judge Wilkinson, who could fairly be
described as Powell’s dispositional, jurisprudential, and ideological doppelgänger.174
Wilkinson saw the Constitution as, “above all, a tribute to process on a grand scale—a
sacred commitment that we as a society will settle diﬀerences a certain way.”175 For Wilkinson,
“law remains the best hope we have.”176 As he explained, “law draws its life . . . from cit-
izens who carry an allegiance to the legal order in their hearts. And as much as I love the
law, I would love it even more if every citizen who left my courtroom would have just a
tiny bit more faith in . . . [the principles of] liberty, justice, freedom, equality.177 Powell
shared with Wilkinson this love and faith—this awe-inspired desire—to preserve and pro-
tect the majesty of all things law. In this way, Powell and Wilkinson resembled Anthony
Kronman’s archetype of the “lawyer-statesman”: the legal professional who charts the
“middle course” and seeks the hidden wisdom behind the apparent “quirks and absurdities
of the status quo.”178 Kronman explained that this ﬁgure embodies “an ancient form of
conservatism” grounded in “character-virtues” and “dispositional attitudes,” such as

171
172
173
174

Id. at 1–2, 4, 8 (“Few knew Powell well enough to detect the anxiety beneath his self-control . . . .”).

168
169 Wilkinson, supra note 163, at 8 (detailing Powell’s “faith in the possibilities of law”).
170

Taylor, supra note 152 (relaying Powell’s memory that, as a teenager, he wanted to become a lawyer because “the
people at the center of the stage were mostly lawyers and military men”).
JEFFRIES, supra note 11, at 5.
Gunther, supra note 92, at 548.
JEFFRIES, supra note 11, at 6.
J. HARVIE WILKINSON III, ALL FALLEN FAITHS: REFLECTIONS ON THE PROMISE AND FAILURE OF THE 1960S (2017); see also
JEFFRIES, supra note 11, at 293–94 (describing the “special relationship” between Wilkinson and Powell, and
noting that Wilkinson “was very like Powell, not only in his southern origin and privileged background, but
also in attitude and temperament”); Wilkinson, supra note 163, at 3–4 (2008) (“[O]ur lives . . . were so
closely intertwined. . . . He and my father were best friends . . . . It was Justice Powell who introduced my
mother and father to each other.”).

175 WILKINSON, supra note 174, at 91.
176

Univ. of Va. Sch. of L., “All Falling Faiths,” with Judge J. Harvey Wilkinson III ’72, YOUTUBE (Apr. 17, 2018),
https://www.youtube.com/watch?v=ioSDd7pVR-4.

177 WILKINSON, supra note 174, at 91.
178

ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE LEGAL PROFESSION 118, 154–55, 161–62 (2001).

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“public-spirited stoicism,” a penchant for “pragmatic gradualism,” the pursuit of “excel-
lence,” the exercise of “practical wisdom,” and “civic-mindedness.”179 Most of all, the
lawyer-statesman retains a “reverence” for law and approaches it with an “aristocratic”
bearing, which entails more than just a resistance to “every rapid change in the legal
order”; it is, rather, the posture of a person who disdains “unruly proceedings” and
delights in the “ceremonial trappings of the law” and its “requirements of orderliness
and precision.”180

Powell was, in a nutshell, a proud institutionalist. His moral identity was deﬁned by a
reverence—his personal conception of what Lon Fuller called the “inner morality of
law.”181 Indeed, themes of “reverence” and “faith” recur throughout John Jeﬀries’s
biography—for example: “Powell approached the Court with a kind of reverence. The Su-
preme Court was the temple of his belief in reason, in moderation, in the worth and prog-
ress of the search for a perfect balance of order and liberty. He had this faith long before he
became a Justice, and he never lost it afterward.”182 Powell was convinced of the majesty of
his profession and “never became cynical about the process of judging.”183 For Powell,
then, “rule ﬁdelity” and “role ﬁdelity” were moral terms.184 This made Powell an anti-
positivist, even if his anti-positivism was more attitudinal than theoretically developed.185
He may have resisted the notion of an overarching judicial philosophy,186 but he still
displayed one—a principled, pragmatic institutionalism. The law was his thing, and its
ministers were his people.187 He focused, principally and in principle, on what was good
for it and them. In this sense, Robert Cover’s notion of a “moral-formal dilemma” is sim-
ply inapplicable to Powell. Powell’s anti-positivist choices tended, instead, to be trade-oﬀs
between two moral commitments—a commitment to an extralegal moral course and a
commitment to the rule of law as a moral virtue. Any pretense, on Powell’s part, toward
positivism was just that—a pretense or, at most, a gesture or expedient to underscore

179
180
181
182
183
184
185

186
187

Id. (discussing Alexis de Tocqueville).
Id. at 118, 154–55, 161–62 (describing the “‘aristocratic’ sentiment” of the lawyer-statesman).
Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 HARV. L. REV. 630, 650 (1958).
JEFFRIES, supra note 11, at 305, 452 (describing Powell’s “reverence for the law”).
Id. at 305.
Supra notes 7, 56 and accompanying text (discussing Robert Cover’s notions of “rule ﬁdelity” and “role ﬁdelity”).
By “anti-positivism,” I have in mind an umbrella term that captures any conception of law or legalism that is
morally inﬂected intrinsically. See, e.g., Emad H. Atiq, There Are No Easy Counter-Examples to Legal Anti-
Positivism 17 J. ETHICS & SOC. PHIL. 1, 2 (2020) (“Anti-positivism is the view that a rule’s moral features
ground its legality fundamentally.”); see also infra note 252 and accompanying text.
Supra notes 149–161 and accompanying text.
Infra Part II.B.

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forcefully his foundational beliefs in the moral importance of the rule of law and his cor-
responding ﬁdelity to its agents and implements.188

On this reading, Powell’s McCleskey decision was animated not by “formal legal doc-
trine” but by moral apprehension—principled pragmatic concerns—over the Baldus
study’s threat to “the judiciary’s role.”189 Powell was paralyzed with fear that a “statistical
jurisprudence” would constitute “nothing less than a fundamental challenge to the
criminal-legal system.”190 In the ﬁrst instance, Powell perceived institutional peril in the
Baldus study’s underlying implication—that is, that systemic racism was (and is) perva-
sive. In this sense, his decision was a matter of shooting the messenger: “[I]f one hears
such a message, . . . that black life is being valued less than white life . . . it is going to
bring about a crisis in one’s constitutional faith . . . destined to bring about disappoint-
ment, disillusionment, and anger.”191

Likewise, Powell was uncomfortable with mathematics. During the drafting of his
McCleskey opinion, he conﬁded in a memorandum that “[m]y understanding of statistical
analysis ranges from limited to zero.”192 But, signiﬁcantly, this was not a situation where
Powell’s diﬃculties could have been solved by a class in econometric methods; Powell’s
concerns were normative in nature. He was convinced that “numerology”—as he once
derisively referred to data—did not belong in courtrooms.193 As Scott Sundby explained,
“his belief in the legal process and its actors”—his belief in legal argumentation and
adjudication as a human enterprise—was the root of “his distrust of ‘statistical

188

189

190

191
192
193

It seems that something like this possibility was not entirely lost on Cover. To the contrary, at one point in
JUSTICE ACCUSED, he reframed the antislavery judge’s “moral-formal dilemma” as, potentially, “a moral-moral
decision” between a moral concern for the “liberty” of the enslaved human being and moral anxiety over
“the viability of the social compact.” COVER, supra note 6, at 197–98. Here, Cover seemed to concede that,
sometimes, positivism qua positivism does not do the real work of resolving moral-formal dilemmas; instead,
positivism might operate only as a legal hook for an underlying moral allegiance to positive legality.
COLE, supra note 51, at 138 (“What drove the majority to reach its result was not formal legal doctrine but
pragmatic concerns about the judiciary’s role.”
Id. at 138–39 (discussing Powell’s concern that crediting statistical constitutional claims would “throw[] into
serious question the principles that underlie our entire criminal justice system”); Sundby, supra note 4, at 6
(using the term “statistical jurisprudence”).
Id. at 29.
JEFFRIES, supra note 11, at 439.
Ballew v. Georgia, 435 U.S. 223, 246 (1978) (Powell, J., concurring). Powell’s very use of the term “numerology”
suggests that he perceived rigorous social science to fall into a category of quackery with pseudosciences, like
astrology. See WIKIPEDIA, Numerology (“Numerology is the pseudoscientiﬁc belief in a divine or mystical
relationship between a number and one or more coinciding events. . . . This colloquial use of the term is
quite common within the scientiﬁc community and it is mostly used to dismiss a theory as questionable
science.”); see, e.g., HOROSCOPE, https://www.horoscope.com/us/ horoscopes/numerology/index-horoscope
-numerology.aspx (“Discover how numerology will impact your love life, relationships, ﬁnances and health
this year!”).

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jurisprudence.’”194 Thus, Powell wrote in a McCleskey memorandum: “Apart from the fact
that they may be statistically sound, this Court should not undertake—in this or other
cases—to determine constitutional cases based on statistics.”195 To do so would be to “in-
vite a system of ‘statistical jurisprudence’—unprecedented in civilized history.”196 For
Powell, debating social science just was not what lawyers conventionally did or normatively
ought to do. As Jeﬀries explained, Powell believed that “law was always something diﬀerent
from—and better than” other enterprises. “It was . . . more high-minded.”197 This was
Powell’s core commitment—his love of law—and it was an uncompromising moral com-
mitment. “Powell . . . never lost . . . his reverence for the law as an institution.”198

Powell’s institutional pride was more than just the conceit of a man who genuinely
treasured his work. Like Cover’s judges, he saw law as the only bulwark against “perfect
anarchy”—the only foundation upon which civilization can exist.199 We see something of
the same high-minded notion of the moral stakes of legal practice and processes in Henry
Hart and Albert Sacks’s “principle of institutional settlement”—a principle that claims that
only a legal order has the capacity for “establishing, maintaining, and perfecting the con-
ditions necessary for community life,” that only a legal order can ensure “the complete
development of man.”200 Judges and lawyers who subscribe to such a view are likelier
to see the “is” of positive law as “a special kind of ‘ought’” and their own positive craft
as means by which “social living” is made possible.201 These lawyers and judges tend to
believe themselves to be, in Judge Wilkinson’s terms, “architects of a stable society.”202

194
195

196
197
198
199

200

Sundby, supra note 4, at 6.
Id. at 14 (emphasis added); see also Ballew, 435 U.S. at 246 (Powell, J., concurring) (“I have reservations as to the
wisdom—as well as the necessity—of . . . heavy reliance on numerology derived from statistical studies.”).
Likewise, in retirement, Powell told an interviewer that outcomes in the criminal-legal system should turn on
the consciences of jurors, not on statistics. Taylor, supra note 152. One can only imagine what Powell would have
thought about recent debates over algorithmic justice. See generally Sandra G. Mayson, Bias In, Bias Out, 128
YALE L.J. 2218 (examining the judicial use of algorithmic risk assessment tools).
Sundby, supra note 4, at 31–32 (quoting Powell’s annotation on a draft of Brennan’s McCleskey dissent).
JEFFRIES, supra note 11, at 43.
Id.
COVER, supra note 6, at 230, 244; see also Derrick A. Bell, Jr., Book Review, 76 COLUM. L. REV. 350, 353 (1976)
(reviewing ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS (1975)) (noting that Cover’s
antislavery judges portrayed their eﬀorts as necessary for the “preservation of the union”). See generally Josh
Bowers, The Skeptical Unicorn (forthcoming) (reexamining what motivated Cover’s antislavery judges).
HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF
LAW 5–6, 102 ( William N. Eskridge, Jr. & Philip P. Frickey eds., 1996).
Id.

201
202 WILKINSON, supra note 174, at 74; see also JEFFRIES, supra note 11, at 470 (noting that Powell “dreaded chaos and

upheaval” and thought that “[l]aw should serve the cause of social stability”).

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There is a nobility to this worldview. But the risk is making too much of the law and
reacting too rashly to perceived threats to it.203 In McCleskey, Powell’s righteous profes-
sional faith translated to a moral bias for the institutional status quo. It led Powell to over-
value systemic interests and, in the process, to maintain the systematic, immoral practice
of undervaluing Black murder victims. For a pragmatist, with an eye toward balancing
competing interests, this is especially dangerous territory. Mark Tushnet explained:

If a judge adheres to a jurisprudence of balancing, as Powell did, it would be desirable
for that judge to have a capacious social vision. Judges who lack such a vision may
not do a good job in balancing competing interests because they do not fully appre-
ciate the range of interests at stake. Perhaps a judge like Powell would have done
better as a formalist.204

If nothing else, Powell might have benefited from a healthy dose of skepticism about the
moral importance of the law and legal and judicial craft.205 Instead, he exhibited a kind of
hubris. Perhaps it is unfair to hang such a pejorative term on a man as seemingly humble
as Powell. But his hubris was a matter of professional pride, not personal deportment. It
was the hubris of a judge absolutely convinced that law’s domain is so morally vital that
we must humble ourselves, uncritically, before it.

B. Powell’s People
Justice Powell tended to see the best in those around him. His clerks admired him
greatly.206 And he largely reciprocated, treating them with familiarity and warmth—albeit
formal in fashion.207 He ﬁlled his chambers with their photos; he sang their praises for all to
hear.208 These are, of course, highly commendable qualities in a person and an employer.
But, for a judge, they create a potential pitfall—the lack of will to reﬂect critically on
the decisions and actions of favored familiars or to appreciate how these decisions and
actions could aﬀect others negatively. By charitably reading good intentions into the
conduct of those insiders who worked for his noble institution, he unconsciously

203 Wilkinson, supra note 163, at 95–96.
Tushnet, supra note 18, at 1883–84.
204
Infra Part III.
205
See, e.g., JEFFRIES, supra note 11; Wilkinson, supra note 163.
206
Supra notes 162–166 and accompanying text.
207
JEFFRIES, supra note 11, at 528–29 (“His recollections of those who worked for him always focused on their
208
abilities and achievements, not on their shortcomings. . . . [H]is description of someone often approximated
a resume. . . . No doubt this habit of tolerance and respect for others accounted for the great aﬀection he
often inspired.”); see also Taylor, supra note 152.

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minimized, on balance, the concerns of those outsiders that his sometimes-ignoble institu-
tion worked upon.209

In McCleskey, this penchant translated to a practically insurmountable presumption
against “impropriety” in institutional stakeholders.”210 Just as he assumed his clerks would
do the right thing, Powell assumed professional prosecutors and judges (and, by extension,
lay jurors professionally selected and instructed by them) would do the right thing. He
largely conceded as much in a McCleskey memorandum when he explained that it would
“not be easy for me to accept th[e] view,” advanced by McCleskey’s lawyers and amici, that
“lawfully qualiﬁed” judges and juries were unequipped “to decide capital cases fairly.”211
And Powell seemed to ﬁnd it even harder to second-guess prosecutors—institutional
stakeholders who traditionally have enjoyed a “wide” charging discretion that Powell only
widened further by requiring “exceptionally clear proof” of discriminatory motivation to
demonstrate an equal protection claim of selective prosecution.212 There is a conventional
view of prosecutors, to which Powell apparently subscribed, that they are a special breed of
lawyer—custodians of the rule of law and embodiments of a “professional ideal” that,
according to Bruce Green, makes them more like judges than ordinary attorneys; more
like colleagues, that is, for a man like Powell.213 In Powell’s estimation, these were the
good people who worked in his shop; they could be trusted to handle their responsibilities
with the same level of diligence and decency that Powell brought to his own life and labor.

209

Cf. infra notes 282–287 and accompanying text (distinguishing between judicial ability and will ). See generally
Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. REV. 911, 911 (2006) (“A
great gulf divides insiders and outsiders in the criminal justice system. The insiders who run the criminal justice
system—judges, police, and especially prosecutors . . . [and the o]utsiders—crime victims, bystanders, and most
of the general public.”).

Sundby, supra note 4, at 19–20.

210 McCleskey v. Kemp, 481 U.S. 279, 296 (1987).
211
212 McCleskey, 481 U.S. at 296 (“[T]he policy considerations behind a prosecutor’s traditionally wide discretion
suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, often
years after they were made.” (internal quotation marks omitted)). Of course, his deference—even to
prosecutors—had its constitutional limits, as revealed by his decision in Batson v. Kentucky, where Powell
made it comparatively easy for defendants to establish a prima facie equal protection claim in the narrow
context of jury selection. Batson v. Kentucky, 476 U.S. 79, 93 (1986). But Batson was, to a degree, the
exception that proves the rule. To demonstrate a Batson violation, the defendant had to oﬀer
evidence—statistical or otherwise—that this prosecutor possessed a discriminatory purpose in the exercise of
peremptory strikes in this case. Id. The holding in Batson did not disrupt the underlying presumption that,
absent case-speciﬁc proof, the American criminal-legal system operated evenhandedly.
Bruce A. Green, Why Should Prosecutors “Seek Justice”?, 26 FORDHAM URB. L.J. 607, 613 (1999); see also Abbe
Smith, Can You Be a Good Person and a Good Prosecutor?, 14 GEO. J. LEGAL ETHICS 355, 356 (2001) (describing
the conventional view that prosecutors are “noble” agents of the state who seek not only to “stand up for the
victims and would-be victims” but also to “seek truth, justice, and the American way”).

213

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I do not mean to suggest that the scope of Powell’s capacity for concern extended no
further than his Rolodex. But Powell was a product of his environment. Even his litigation
career was corporate-dominated, sheltering him from “the wide range of human experi-
ences that might have expanded his social vision . . . [beyond] people . . . drawn from a
relatively narrow range.”214 He was carried forward by a faith in the moral goodness
and professional excellence of the people who occupied his world—the world of elite
practice. He considered himself an upright person who was part of an upright enterprise.
As Mark Tushnet observed, “Reviewing Powell’s career as a whole, one can see a pattern
in which Powell could appreciate claims made by those with whom he could readily iden-
tify, but he could not fully appreciate claims made by those who seemed diﬀerent from
him.”215 This was the “underside” to Powell’s institutional “jurisprudence of centrism”—to
his idiosyncratic pragmatism.216 Tushnet concluded that

when one seeks to balance interests, the result is likely to be distorted to the extent
that one systematically undervalues the interests on one side of the balance while
giving full weight to the interests on the other side. . . . Powell’s desire to achieve bal-
ance meant that the law he articulated reﬂected the balance he struck, not a balance
accessible to any fair reader of the cases.217

Powell may have tried hard to resist the “temptation to read personal preference into
the Constitution,” as he insisted judges must strive to do.218 But, in McCleskey, he gave
in to his subjective impulses by minimizing reﬂexively the inconvenient “realities” of the
Baldus study and by “placing too much conﬁdence in the rule of law and in the abilities of
the human actors involved in the death penalty.”219 A judge who, by his own estimation,
sought to “try to be careful, to do justice to the particular case,” issued a ruling that was
categorical, rather than careful, and did justice neither to the particular defendant nor to
his case.220

C. Powell’s Regret
In retirement, Justice Powell disavowed his decision in McCleskey v. Kemp, explaining,
“I have come to think that the death penalty should be abolished.”221 He had evolved, it

214
215
216
217
218
219
220
221

Tushnet, supra note 18, at 1883.
Id. at 1875.
Tushnet, supra note 18, at 1879.
Id. at 1854–55, 1872, 1883–85.
Furman v. Georgia, 408 U.S. 238, 431 (1972) (Powell, J., dissenting).
Sundby, supra note 4, at 27, 35.
Taylor, supra note 152.
JEFFRIES, supra note 11, at 451 (quoting Powell).

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seemed, from a “fervent partisan” for the constitutional “permissibility” of capital punish-
ment into a man who absolutely opposed it.222 Still, Powell was not an abolitionist in the
traditional—or moral—sense of the word. To the contrary, he remained somewhat un-
troubled by the barbarity of the punishment. It is not even obvious that he had grown
more anxious about racial skews in its aggregate administration. His reasons for turning
against the sanction were entirely institutional: “death-penalty litigation was marred by
unnecessary repetition and delay,” thereby undercutting the criminal-legal system’s public
image and, by extension, its moral force.223 He explained to Jeﬀries, “It brings discredit on
the whole legal system, that the sentence upheld by the Supreme Court and adopted by
more than thirty states can’t be or isn’t carried out.”224

Powell grew convinced that the punishment could not, constitutionally, be adminis-
tered expeditiously, because judges—Powell included—were uncomfortable moving faster
or more categorically. According to Jeﬀries, “Powell knew ﬁrsthand the[] deadly hold
on the judge’s peace of mind. He knew how hard it was not to take a second, third, or
fourth look at rejected claims. . . . Powell came to believe that the system as a whole would
always be plagued by doubt and that doubting itself, it would inspire resentment and
contempt.”225 Thus, Powell did experience some genuine moral queasiness about state-
sanctioned killing, but this sentiment played only a second-order role in his newfound
abolitionism. His opposition to the death penalty was, ﬁrst and foremost, animated by
his anti-positivist, moral commitment to the legal order. As Jeﬀries explained,

for Powell, . . . [t]he death penalty should be barred, not because it was intrinsically
wrong but because it could not be fairly and expeditiously enforced. The endless
waiting, merry-go-round litigation, last-minute stays, and midnight executions
oﬀended Powell’s sense of dignity and his conception of the majesty of the law. . . .
Better to have done with the whole ugly mess than to continue an indecent, embar-
rassing, wasteful charade.226

As such, Powell’s abolitionism was “not a change of heart, but a change of mind” based
principally on the belief that “[a]s actually enforced, capital punishment brings the law

222

223

224
225

226

Id. at 409. To appreciate just how far Powell had evolved, consider that, early in his judicial career, he believed
that capital punishment was largely beyond constitutional purview: “If there were defects in the administration
of the death penalty . . . the remedy lay in legislation . . . and conﬁdence in the democratic process.” Id. at 411.
Id. at 446; Tushnet, supra note 18, at 1880 (noting that Powell “got impatient with the diﬃculty in actually
carrying out executions”).
JEFFRIES, supra note 11, at 446, 451 (quoting Powell).
Id. at 427, 429, 453 (noting Powell’s concern that too-quickly clearing the judicial backlog would produce an
unseemly “bloodbath”).
Id. at 452 (emphasis added).

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itself into disrepute.”227 The problem with McCleskey was not that the Court had con-
doned an unequally enforced ﬁnal punishment; the problem was that, in operation, the
death penalty looked bad and contributed to a public “loss of faith” in the very structures
to which Powell had dedicated unwavering ﬁdelity.228 By this logic, the same moral and
professional biases that prompted him to ignore profound racial skews in capital charging
and sentencing led him, ultimately, to reject the punishment altogether. For his majestic
vision of the law to live, the death penalty had to die.

III. NO LOVE OF LAW

Robert Cover never thoroughly deﬁned his understanding of “the tradition of positivism,”
but he seemed to have in mind a strong form of “rule ﬁdelity” and “role ﬁdelity”—the
notion that “the judge ought to be will-less.”229 Cover concluded that antislavery judges
who enforced the fugitive slave acts reconciled their moral “discomfort” by highlighting
“the formal structure of the law” and framing it in its “gravest and highest terms.”230 They
allowed themselves to become “mechanical instrument[s] of the will of others” rather than
moral actors on a legal stage.231 They endorsed the belief that “there are certain rules
deﬁning the oﬃce and that, whatever those rules may be, the judge should obey them.”232
They may have “lamented harsh results” and “really squirmed,” but, ultimately, they “did
the job.”233

It is not obvious that Cover was correct about his antislavery judges. In a forthcoming
essay, I intend to complicate his narrative with evidence that the jurisprudence of these

227
228
229

230
231

232

233

John C. Jeﬀries, A Change of Mind That Came Too Late, N.Y. TIMES, June 23, 1994, at A23.
Sundby, supra note 4, at 33.
COVER, supra note 6, at 7, 29–30, 50–54, 124, 197, 257 (“By formal principles I mean [inter alia] . . . those
governing the role of the judge, his place vis-à-vis other lawmaking bodies, [and] his subordination to
precedent, statute, and Constitution.”). On Cover’s reading, antislavery judges operated according to the idea
that “[i]t is a uniform, not nature, that deﬁnes obligation,” and that “law is distinguished from both the
transcendent and the personal sources of obligation.” Id. at 3.
Id. at 229, 231.
Id. at 229, 235 (“The discomfort incidental to a diﬃcult choice . . . will be reduced insofar as he can view himself
as a mechanical instrument of the will of others. Therefore, he will choose from among available models of the
judicial process that model that will most closely approximate the mechanical-impersonal formalism.”).
Id. at 7, 29–30, 50–54, 124, 257; see also Anthony J. Sebok, Judging the Fugitive Slave Acts, 100 YALE L. J. 1835,
1836 n.9, 1838 (1991) (“Cover’s American positivism aspires to a legal system built on rules whose interpretation
require the minimum of normative judgment by their interpreters.”); Robert Cover, Forward: Nomos and
Narrative, 97 HARV. L. REV. 4, 37 (1983) (arguing that Justice Taney’s “positivist interpretation . . . assumed a
principle justifying obedience” to the manifestly immoral rule announced in Dred Scott).
COVER, supra note 6, at 6–7, 228 (“[T]here was a general, pervasive disparity between the individual’s image of
himself as a moral human being, opposed to slavery as part of his moral code, and his image of himself as a
faithful judge, applying legal rules impersonally.”).

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judges was, in fact, closer to Powell’s institutional brand of anti-positivism.234 Regardless,
however, of whether Cover was right about his judges, he was wrong about positivism.
Cover subscribed to a pejorative “caricature” of the positivist as just any judge who reaches
a “morally impoverished” result.235 Indeed, Fred Schauer identiﬁed Cover as a source of
this “distorted version” of the philosophy:

Many legal scholars . . . [p]erhaps originally inspired [inter alia] by Robert Cover . . .
maintain that legal positivism . . . encourages (causally) blind obedience . . . [and]
excess acquiescence . . . [and] just is (deﬁnitionally) the attitude of blind obedience to
law. . . . [A] generation of (mostly) American legal theorists has claimed that legal
positivism is the appropriate label for what judges do when they understand their job
as one of following and enforcing the law just because it is the law, or enforcing a
morally thin conception of the law even in the face of morally richer interpretive
alternatives. . . . This is precisely the position I wish to challenge.236

Although positivism “insists on a sharp separation between law and morality,”237 it does not
follow that law must trump.238 To the contrary, “legal positivism . . . is best seen not as a
cause of the problem of excess compliance but as a potential solution to it.”239 As H.L.A.
Hart made plain, positivists have long understood that “the time might come in any society

234
235
236

237

238
239

Josh Bowers, The Skeptical Unicorn (forthcoming).
Fred Schauer, Positivism as Pariah, in THE AUTONOMY OF LAW 29, 33, 46 (Robert P. George ed., 1996).
Id. at 29, 31–33, 35 (observing that “the existing caricature of positivism as an amoral mandate to unquestioning
obedience dominates much of contemporary American legal thought,” even though there is “scant historical or
philosophical provenance” for it); see also Leslie John Green & Thomas Adams, Legal Positivism, in STANFORD
ENCYCLOPEDIA OF PHILOSOPHY (2003) (“Lawyers often use “positivist” abusively, to condemn a formalistic doctrine
. . . [that,] however pointless or wrong, is to be rigorously applied by oﬃcials and obeyed by subjects. . . . [T]his
view . . . has nothing to do with legal positivism.”). Examples of the caricature that Schauer criticized include
Gurney Pearsall, Revisiting Antigone’s Dilemma: Why the Model Rules of Professional Conduct Need to Become
Model Presumptions That Can be Rebutted by Acts of Ethical Discretion, 67 S.C. L. REV. 163 (2015) (“[L]egal
positivism is a commitment to law. . . . [T]he interpreters of a law must set aside their roles as independent
moral agents and act as impartial functionaries within our legal institutions. . . . [T]he separation between
law and morality necessarily means that an individual’s disagreement with the morality of a law would not
excuse that person from the duty to obey it.”); J.C. Oleson, The Antigone Dilemma: When the Paths of Law
and Morality Diverge, 29 CARDOZO L. REV. 669, 684 (2007) (“[W]hen individual judges do struggle to open
their eyes to moral questions, and to admit moral considerations into their adjudicative processes, the
positivist hierarchy of the judiciary seeks to tape their eyes shut again.”).
JEFFRIE G. MURPHY & JULES L. COLEMAN, THE PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 29 (1984);
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 620–21 (1957) (defending a
“separation of law as it is and law as it ought to be”).
Schauer, supra note 235, at 29, 33 (“This caricature [of positivism] is . . . inaccurate.”).
Id. at 31–32.

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when the law’s commands [a]re so evil that the question of resistance had to be faced.”240
Anti-positivists, Hart thought, might not be able to identify adequately when law crosses
that line, because they are too busy trying to identify what law is in the ﬁrst instance.241

The complication is that judges do not operate in a vacuum; they work within what
Fred Schauer called a “law-soaked” world.242 Positive law and its institutions are their “ex-
periential base.”243 Its structures, substance, and procedures surround them. Everywhere
judges turn, “there are directives emanating from authority.”244 To borrow a metaphor
from David Foster Wallace, it is the water in which they swim.245 And certain types of
institutionally proud, anti-positivist judges just tend to have a fondness (in Powell’s case,
a love) for the water’s temperature.246 As Judge Dennis Jacobs explained, “[i]n our courts,
judges are lawyers. . . . The result is the incremental preference for the lawyered solution, . . .
and the conﬁdence and faith that these things produce the best results. . . . [J]udges have a
bias in favor of legalism and the legal profession. . . . It is a matter of like calling unto
like.”247 This implicit bias is a product of moralized “legal training . . . and judicial accul-
turation,” which grounds the proud institutionalist’s unexamined normative presumptions
that positive law must be law (and law, in turn, must be moral).248 “[T]he danger,” in

240

241

242
243
244
245

246
247

248

Hart, supra note 237, at 597 (discussing Jeremy Bentham); see also id. at 616–17 (“Austin and, of course,
Bentham . . . [subscribed to] the conviction that if laws reached a certain degree of iniquity then there would
be a plain moral obligation to resist them and to withhold obedience”); Schauer, supra note 235, at 44–45
(“‘[P]ositivism’ is a now widely used label for the view that oﬃcials by virtue of their role should enforce the
law as written, . . . [but] this conception of positivism and the positivism of Bentham, Austin, Kelsen, Hart, and
Raz is not much closer than the relationship between the banks in which we deposit our money and the banks
that lie beside our rivers.”). See generally JEFFREY BRAND-BALLARD, LIMITS OF LEGALITY: THE ETHICS OF LAWLESS
JUDGING 56 (2010) (“That the law requires certain results does not logically entail that any particular
individual has a legal duty to decide cases accordingly. It might seem that the concept of judge entails a legal
duty to apply the law, but this is incorrect.”).
Hart, supra note 237, at 597, 620–21; cf., LON L. FULLER, THE MORALITY OF LAW 39 (1964) (making the anti-
positivist claim that a moral “failure” of a purported legal system is not “a bad system of law”; it is “not
properly called a legal system at all”).
Schauer, supra note 235, at 45.
Id.
Id.
DAVID FOSTER WALLACE, THIS IS WATER: SOME THOUGHTS, DELIVERED ON A SIGNIFICANT OCCASION, ABOUT LIVING A
COMPASSIONATE LIFE (2009).
Supra Part II (describing Powell’s jurisprudential approach and worldview).
Dennis Jacobs, The John F. Sonnett Memorial Lecture: The Secret Life of Judges, 75 FORDHAM L. REV. 2855, 2856–
59 (2007) (emphasis added). Institutional bias is a topic I have examined elsewhere. Josh Bowers, Legal Guilt,
Normative Innocence, and the Equitable Decision Not to Prosecute, 110 COLUM. L. REV. 1655 (2010) (discussing
prosecutors’ charging biases); Josh Bowers, Punishing the Innocent, 156 U. PA. L. REV. 1117 (2008) (discussing
judges and lawyers’ bargaining biases).
Schauer, supra note 235, at 31–33, 47; see also Duncan Kennedy, Legal Education as Training for Hierarchy, in
THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 43 (David Kairys ed., 1982) (describing legal education as
“surrender . . . to a passive attitude toward the content of the legal system”).

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Hart’s terms, is “that the existing law may supplant morality as a ﬁnal test of conduct and
so escape criticism.”249 Or as Schauer explained,

it is the rejection . . . of positivism that appears conservative, in the sense of taking the
existence of an institution of long-standing status as a reason for treating it kindly and
respecting its products. To take law and morality as necessarily conjoined is to run the
risk of minimizing the moral space between the products that legality has given us
until today and the goals we might wish an ideal legal system to accomplish.250

Justice Powell is a paradigmatic example of the kind of institutionally proud, anti-
positivist judge that Hart and Schauer warned against, especially prone to “an enormous
overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of
law, as if this, once declared was conclusive of the ﬁnal moral question.”251 Indeed, Hart
seemed to anticipate a judge just like Powell when he wrote about “the romantic optimism
that all values we cherish ultimately will ﬁt into a single system” and about how the im-
possible belief in that ideal may “cloak the true nature of the problems with which we are
faced.”252 Hart elaborated:

Wicked men will enact wicked rules which others will enforce. What surely is most
needed in order to make men clear-sighted in confronting the oﬃcial abuse of power,
is that they should preserve the sense that the certiﬁcation of something as legally
valid is not conclusive on the question of obedience, and that, however great the aura
and majesty of authority which the oﬃcial system may have, its demands must in the
end be submitted to a moral scrutiny.253

Hart recognized that institutionally proud judges lack the appropriate distance to evaluate
positive law with a sufficiently critical gaze. They are too deeply enmeshed—and too

249
250

251
252
253

Hart, supra note 237, at 598.
Schauer, supra note 235, at 45–47 (“[I]f the evaluator has had suﬃcient positive experiences with legal norms
and legal institutions . . . the presumption of moral desirability facilitated by a moral test of legality is consistent
with that evaluator’s presumptions about law in general.”). As Leslie John Green and Thomas Adams explained,
“[i]t is a curious fact that almost all theories that insist on the essentially moral character of law take law’s
character to be essentially good.” Green & Adams, supra note 236 (“The gravamen of Fuller’s philosophy is
that law is essentially a moral enterprise, made possible only by a robust adherence to its own inner
morality. The thought that the law might have an inner immorality never occurred to him.”).
Hart, supra note 237, at 618.
Id. at 620 (emphasis added).
H.L.A. HART, THE CONCEPT OF LAW 210 (2d ed. 1994) (emphasis added); Schauer, supra note 235, at 31 (“There
are many bad laws. . . . [O]ne good way of avoiding bad results is for legal oﬃcials (primarily but not exclusively
judges) to refuse to serve as instruments of morally bad results.”).

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comfortable within—existing legal boxes. From that myopic vantage point, the “is and the
ought” have a propensity to become “one and indivisible.”254 Or, as Fred Schauer put it,
“a chooser trapped inside the legal system . . . seek[s] moral enrichment for the job she
necessarily must do . . . and in doing so may wind up providing more endorsement for
existing law and legal systems than some laws and some legal systems deserve.”255 It is
for this very reason that Jeremy Bentham exhibited such a “profound distrust of both
lawyers and judges,” who operate always “within the system.”256

Ultimately, the very attributes that made Justice Powell such a seeming pleasure to
work for and with—his apparent geniality, civility, and kindness—were byproducts of
the same moderate temperament and corresponding moral perspective that informed
his opinion in McCleskey v. Kemp. Powell was sometimes genuinely sympathetic and em-
pathetic, but he identiﬁed best with the people he interacted with most—especially, the
lawyers and judges who were doing what he perceived to be majestic work.257 For a judge
with a “limited social vision” and a pragmatic streak (in the sense that he was committed
to a balancing of the moral interests), he ended up making a “parody of pragmatism” in
McCleskey.258 He presumed virtuousness in his own people—to wit, charging prosecutors,
trial judges, and sentencing juries. Put diﬀerently, because Powell was situated squarely
within a status quo to which he was committed, he failed adequately to recognize outsider
groups as suﬃciently worthy, on balance, of moral consideration, notwithstanding persua-
sive statistical and historical evidence that his cherished institutions continued to treat
these groups unequally and thereby immorally.259

It is positivism, by contrast, that best allows observers to step “outside the system” and,
from there, call its morally problematic norms and forms into question.260 Because pos-
itivist judges have no necessary love of law, they can more easily avoid “confusion of what
law is with what law ought to be.”261 As Schauer explained, “[n]o position other than pos-
itivism allows such a sceptical attitude towards legal institutions that have been developing
for millennia, and towards the equally aged assumptions that existing laws and their ac-
companying or generating institutions are desirable.”262 By this reasoning, a “morally thin
view” of the meaning and concept of the rule of law does not necessarily translate to a

254
255
256
257
258

259
260
261
262

Hart, supra note 237, at 598 (quoting Bentham).
Schauer, supra note 235, at 47.
Id. at 46–47.
Supra notes 19, 26, 29–30, 181–188, 197–204, 206–215 and accompanying text.
Tushnet, supra note 18, (describing Powell’s “narrow social vision”); Ronald Dworkin, Introduction: A BADLY
FLAWED ELECTION: DEBATING BUSH V. GORE, THE SUPREME COURT, AND AMERICAN DEMOCRACY 41 (2001) (using
the term “parody of pragmatism” to discuss Judge Richard Posner’s analysis of the Bush v. Gore decision).
Supra notes 19–26, 32–36, 115–128, 144 and accompanying text.
Schauer, supra note 235, at 47.
Hart, supra note 237, at 599.
Schauer, supra note 235, at 42–43.

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“thin view of morality” but may be wholly compatible, instead, with its opposite.263 Pos-
itivism is potentially “morally valuable” because it provides “the conceptual resources” to
“identify and evaluate a legal system,” focusing the moral mind on the “distinction be-
tween the is and the ought that lies at the heart of the traditional positivist project.”264
By keeping constant “the fact of legality” as “a morally neutral social fact,” skeptical pos-
itivists more readily see past—or never develop—professional biases.265 In turn, they more
readily understand that law qua law is of no moral merit.

Here, I am reminded of a quip from the radical lawyer William Kuntsler:

Lenin . . . was informed that the person operating the mimeograph machine was a
tsarist spy. “Well, how is he at mimeographing?” Lenin asked. “He’s excellent,”
was the answer. “Well,” Lenin said, “watch him and keep him working.” I feel that
way now, that a lawyer is just another worker who serves a function—no more, no
less[] important than that of the Russian at the mimeograph machine.266

Perhaps Kuntsler was wrong. Depending upon the positive substance and procedures of a
particular legal system, the professions within it may acquire a contingent kind of
nobility.267 We may hope, in this way, that our positive law will not be bad law—that the
legal systems in our “law-soaked” world will do good enough work for us to come to love
them conditionally. And, in a well-functioning (or, more to the point, good-functioning)
legal system, we should expect a “frequent coincidence of positive law and morality.”268
But positivism recognizes that coincidences are just that—extrinsic by nature. To be sure,
there may be moral goods that can be produced only by law, but, as Joseph Raz taught,
that fact does not represent a “moral credit to the law” but rather reﬂects only the kind of
device the law is.269 Here, Raz used the metaphor of a knife. A knife (and a knife handler)
may achieve “a particular excellence,” but it is the excellence of a ﬁne tool (and a ﬁne
technician): “A good knife is, among other things, a sharp knife” with “the virtue of eﬃ-
ciency; the virtue of the instrument as an instrument.”270 There is nothing majestic or
grand about a sharp knife. “[C]onformity” to law may make law “a good instrument

Id. at 46–47.
Id. at 45, 47.
Id. at 46–47.

263
264
265
266 WILLIAM M. KUNTSLER WITH SHEILA ISENBERG, MY LIFE AS A RADICAL LAWYER 189 (1994) (emphasis added).
267

BRAND-BALLARD, supra note 240, at 15, 183–84 (doubting whether such “all-things-considered” conditions “are
satisﬁed today in realistic legal systems such as the United States”).
Hart, supra note 237, at 599; HART, supra note 253, at 185–86.
JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAYS ON LAW & MORALITY 224 (2d ed. 2009); Joseph Raz, The Law’s Own
Virtue, 39 OXFORD J. LEGAL STUD. 1, 13 (2019) (“While conformity to the rule of law has clear moral beneﬁts . . .
the rule of law . . . does not guarantee that the law is good, or just.”).
RAZ, supra note 269, at 225–226.

268
269

270

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for achieving certain goals,” but “conformity . . . is not itself an ultimate goal.”271 Put
simply, capable implements are not moral ends. In any event, sharp knives cut both ways,
and, sometimes, we should resist slicing.272

The positivist recognizes that law is a means, not an end, because the positivist likewise
recognizes that law is not everything. According to Raz’s thin conception of the meaning
and the rule of law, positive law is not necessarily commensurate with our fundamental
“social goals,” such as “democracy, justice, equality (before the law or otherwise), human
rights of any kind or respect for persons or for the dignity of man.”273 Indeed, Raz singled
out “racial, religious, and all manner of discrimination” as wholly consistent with positive
law and legal institutions, notwithstanding our moral objections and our anti-racist objec-
tives.274 To understand this is to begin to shake free from the implicit institutional biases
that plagued Powell. Powell mistook the instrumental means of oﬃcial discretion for the
normative ends of individualized justice precisely because he mistook the legal oﬃcials
who exercised discretion for intrinsically moral beings.275 In the process, his implicit in-
stitutional biases caused him to undervalue the immoral import of institutionalists’ implic-
it racial biases.

Powell presumed that the rule of law is “the rule of good law,” and he developed, with-
out noticing, the corresponding view that nothing more was needed—that substantive law
and its procedures and professionals “propound a complete social philosophy.”276 In other
words, Powell saw all he needed to see in the people around him. These were the individ-
uals whom Powell thought deserved jurisprudential protection—not subordinated groups.
Powell failed thereby to appreciate how these people had been using their discretion, like
Raz’s knife, to cut both ways.

CONCLUSION

Robert Cover identiﬁed four options available to a judge confronting a moral-formal di-
lemma: “[1] He may apply the law against his conscience. [2] He may apply conscience
and be faithless to the law. [3] He may resign. [4] Or he may cheat.”277 Alternatively, the

271
272

273

274
275

276
277

Id. at 229.
Raz, supra note 269, at 13 (“[W]hile the law can be used to achieve much that is good, its existence also creates
opportunities for much evil. . . . The law is a powerful structure, and those who control it have power, which, like
all power, can be abused.”).
Id. at 13 (“[T]he rule of law . . . does not guarantee that the law is good, or just. . . . While conformity to the rule
of law has clear moral beneﬁts it does not guarantee that justice, democracy and respect for human rights
prevail.”); RAZ, supra note 269, at 211.
Id. at 216.
Supra notes 45–49, 63, 141–142, 210–213 and accompanying text (detailing Brennan’s McCleskey dissent
criticizing Powell’s opinion for treating discretion, rather than individualized justice, as the end).
RAZ, supra note 269, at 211.
COVER, supra note 6, at 6.

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judge may sidestep the dilemma altogether by appealing to moral principle to interpret the
law capaciously—a “reconciliation strategy” that “transforms . . . seemingly illegal acts into
ones that are not unlawful at all.”278 This last jurisprudential move—“relying on a capa-
cious conception of law in order to convert the unlawful into the lawful”—is an approach
with a decidedly “anti-positivist ﬂavor.”279 Indeed, Ronald Dworkin proposed that judges
should have done precisely this with the fugitive slave acts by holding that “what law is”
cannot include “the particular and transitory policies of the slavery compromise.”280 And
Cover seemed to endorse the same idea.281

Of course, at some point, an anti-positivist appeal to principle may be suﬃciently
outcome-driven that it constitutes a form of jurisprudential deceit. And, in such circum-
stances, the anti-positivist judge still may remain better situated to articulate a “forced
reading of positive law” that gets around what the judge actually believes the law to
be.282 That is to say, the anti-positivist judge has a greater ability to avoid or reconcile
a moral-formal dilemma by sidestepping or cheating—to rely upon interpretive methods
or ploys to “preserve an appearance (to others) of conformity of law and morality.”283 But
there is a point at which the tricks of the judicial trade run out, and a moral-formal di-
lemma must, thereafter, be confronted squarely. As Jeﬀrey Brand-Ballard observed, “[i]f
principles are part of the law, then so be it. I am interested in the conditions under which
judges are morally permitted to deviate from the law simpliciter, however we deﬁne
law.”284 At that juncture, anti-positivist judges have no comparative advantage. They
are no better at, say, resigning or applying conscience against law in an “act of naked

278

279
280

281

282
283

284

Frederick Schauer, Oﬃcial Obedience and the Politics of Deﬁning “Law,” 86. SO. CAL. L. REV. 1165, 1168–69, 1172,
1186 (2013) (“Faced with an inconsistency between law and morality, or law and the best policy, reconciliation
strategies seek an understanding of law that reconciles the two and, thus, dissolves the inconsistency.”).
Id.
Ronald Dworkin, The Law of the Slave-Catchers, TIMES LIT. SUPP. (Dec. 5, 1975) (arguing that Cover’s antislavery
judges “abandoned a theory of law” whereby “the law of the community consists not simply in the discrete
statutes and rules . . . but in the general principles of justice and fairness that these statutes and rules, taken
together, presuppose by way of implicit justiﬁcation”); see also DWORKIN, supra note 148, at 411 (endorsing
legal theories that “make the community’s legal record the best it can be from the point of view of political
morality”).
COVER, supra note 6, at 232–33; Paul Butler, When Judges Lie (And When They Should), 91 MINN. L. REV. 1785,
1812, 1814 (2007) (“In Cover’s view, judges could have both followed the law and refused to enforce the fugitive
slave acts. Rather than ignoring the law of slavery, judges simply should have ‘interpreted’ it in a very progressive
fashion . . . [and] ma[de] it just.”).
COVER, supra note 6, at 6, 158.
Id. at 6; see also Schauer, supra note 278 at 1182 (noting that the anti-positivist judge may claim that “the
demands of reasonableness and common sense were themselves part of the law, contrary indications of
speciﬁc legal rules notwithstanding”).
BRAND-BALLARD, supra note 240, at 44.

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power.”285 To the contrary, they may very well be less able to discern the sociological con-
ditions that call for such radical steps. More to the point, they may prove substantially less
willing to take the leap. In any event, because the interpretive tools of anti-positivism are
not lost on positivist judges, they may—once they ﬁnd the will to pursue equitable
paths—even cheat with equal ability by hiding their personal positivist priors.286

The conclusion is somewhat inescapable: “[I]f one were a sceptic, then one would want
to be a positivist.”287 As Schauer explained, “leaders of law-reform movements, even quite
radical ones,” are often positivists, because “there is no inconsistency between their pro-
gressivism and their positivism.”288 Rather, their positivism has the virtue of “freeing them
from any normative commitment to existing laws or legal systems.”289 The radical aboli-
tionist William Lloyd Garrison was a positivist.290 The philosophical anarchist A. John
Simmons is a positivist.291 For these skeptics, positivism has provided the jurisprudential
foundation for their allegiance to the belief “that there is no moral obligation to obey
law.”292

Personally, I am not quite there. I am deeply skeptical of the aims and projects of pos-
itive law. But I still prefer a morally inﬂected jurisprudence of balancing.293 This may be
wrongheaded. Perhaps, like Powell, I am just too sentimental about the judicial craft. Or,
perhaps, skeptical positivism is wholly compatible with a thoroughgoing form of

285

286

287

COVER, supra note 6, at 158; see also Michael Stokes Paulsen, Accusing Justice: Some Variations of the Themes of
Robert M. Cover’s Justice Accused, 7 J.L. & RELIGION 33–34, 38, 86 (1989) (discussing the concept of “judicial
vigilantism” and exercises of “raw judicial power”).
Butler, supra note 281, at 1808, 1814–18, 1823 (arguing that “subversive judges,” who “tend to be more
formalist,” should take care to write disingenuous decisions that “will survive appellate review” in order to
succeed at “‘ethical subversion’ of laws that would create ‘extreme injustice,’” and noting that, even if
“judicial candor is a hallmark of civil society, . . . it is not a categorical imperative”).
Schauer, supra note 235, at 46–47. That said, there are highly skeptical anti-positivists, including scholars
working within the critical legal studies movement. See, e.g., Roberts, supra note 115; Brandon Hasbrouck,
The Antiracist Constitution, 102 B.U. L. REV. 87 (2022).
Schauer, supra note 235, at 46–47.
Id.

288
289
290 William Lloyd Garrison, On the Dissolution of the Union, LIBERATOR ( June 15, 1855), https://fair-use.org/the
-liberator/1855/06/15/on-the-dissolution-of-the-union (“The Constitution is the supreme law of the land; . . .
nothing is to stand before it. . . . Therefore, I put my foot on it, as I would upon a reptile. . . . Away with
the Constitution—it smells of blood!”).
A. JOHN SIMMONS, MORAL PRINCIPLES AND POLITICAL OBLIGATIONS 23 (1979) (“[C]ertainly we do not feel that
perverse legal systems or tyrannical governments deserve our support; yet they are not ‘unreal’ for this reason.”).
Schauer, supra note 235, at 46–47, 52 (“For all we know from Hart’s theory of law he may be a radical anarchist
who regards any attitude of normative allegiance as thoroughly immoral.”).
See, e.g., Josh Bowers, Annoy No Cop, 166 U. PA. L. REV. 129 (2017) (endorsing conceptions of the rule of law and
the Fourth Amendment that promote autonomy); Josh Bowers, Probable Cause, Constitutional Reasonableness,
and the Unrecognized Point of a “Pointless Indignity,” 66 STAN. L. REV. 987 (2014) (endorsing conceptions of the
Fourth Amendment that promote dignity).

291

292

293

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pragmatism of the kind I prefer—a “holistic pragmatism” that takes seriously all relevant
moral and prudential claims, legal and extralegal.294 Such a pragmatic balancing act com-
prehends, if nothing else, that we ought to place at the center of the beam the interests of
those individuals who, historically, have been subordinated or disregarded by our institu-
tions, as opposed to the interests of the institutionalists themselves. For the antislavery
judge, this would have meant thinking ﬁrst about persons held in bondage. For Powell,
this would have meant thinking ﬁrst about historically underappreciated Black victims
and historically over-punished Black defendants. This is what it means to possess a com-
prehensive moral imagination as compared to a moral imagination that extends principally
to one’s own workplace and colleagues.

A diﬀerent kind of judge—a more skeptical judge—could have discovered the will (and
perhaps also the way) to ﬁnd a more moral and less blinkered course through McCleskey v.
Kemp. The fact that Powell did not do so and lived to regret it makes him something of a
tragic ﬁgure—a purported man of principle whose institutional pride (or hubris) was
matched only by his personal humility and civility. But, in this context, the word tragedy
probably ought to be reserved for the people of color who continue to be valued and
treated unequally by our often-immoral criminal-legal system.

294

Barzun, supra note 116.

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