MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride

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 furniture 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

Writing for the majority, Powell ostensibly accepted the Baldus study’s clear-cut findings 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 punishment 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 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 systemic 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 propriety.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 explained, “the case was about much more than the death penalty. The real issue at hand 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 concern 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.

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 effect despite its allegedly discriminatory application.”⁵⁹ He worried that permitting a statistical 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 impermissibly 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 underlie 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 “fundamental role of discretion in our criminal justice system,” that prosecutors have enjoyed “traditionally 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 demonstrable 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 institutional 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

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 unknowable.”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 jurisprudence” would produce only a trickle of challenges, not a flood.⁷² But, of course, constitutional 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 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 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:

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 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 equality and against subordination is the defining feature of the Black experience in America. According to Brennan,

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 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 constitutional 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 sentiment 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

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 petitioners 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 context, 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 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 punishment, 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 discriminatory 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 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 subordination 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 ongoing 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:

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, there are circumstances where the social meaning and import of a particular cultural phenomenon 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:

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

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:

“The judicial conscience is an artful dodger,” wrote Robert Cover. “Before it will concede 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 separation 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 individualized approach to charging and sentencing; rather, the Court abandoned oversight, ascribing responsibility for individualization to institutional stakeholders’ notions of individualized justice (notwithstanding persuasive statistical evidence that these notions skewed systemically and systematically by race). According to Cole,

Institutional stakeholders deserved no such deference. The Baldus study revealed, predictably, 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 question.”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 abandoned constitutional review in favor of majoritarian political processes, thereby outsourcing 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.

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

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 constitutional 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 important 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 particularistic,” 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

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 thoroughgoing 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 extended 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

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 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 institutions” 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 people 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 obligation.”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 citizens 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 protect 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 “public-spirited stoicism,” a penchant for “pragmatic gradualism,” the pursuit of “excellence,” 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 Supreme Court was the temple of his belief in reason, in moderation, in the worth and progress 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 simply 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 forcefully his foundational beliefs in the moral importance of the rule of law and his corresponding fidelity to its agents and implements.¹⁸⁸

On this reading, Powell’s McCleskey decision was animated not by “formal legal doctrine” 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) pervasive. 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 disappointment, 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 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 “invite 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 commitment. “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 conditions 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

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 professional faith translated to a moral bias for the institutional status quo. It led Powell to overvalue 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:

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 minimized, on balance, the concerns of those outsiders that his sometimes-ignoble institution 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.

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 experiences 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 identify, 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

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

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 seemed, from a “fervent partisan” for the constitutional “permissibility” of capital punishment 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 untroubled 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 administered 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,

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 itself into disrepute.”²²⁷ The problem with McCleskey was not that the Court had condoned 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.

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 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:

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 “experiential 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 acculturation,” 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 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,

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 impossible belief in that ideal may “cloak the true nature of the problems with which we are faced.”²⁵² Hart elaborated:

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 empathetic, 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 persuasive 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 positivist 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 positivism 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 accompanying 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 “thin view of morality” but may be wholly compatible, instead, with its opposite.²⁶³ Positivism is potentially “morally valuable” because it provides “the conceptual resources” to “identify and evaluate a legal system,” focusing the moral mind on the “distinction between 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 positivists 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:

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 objectives.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 institutional biases caused him to undervalue the immoral import of institutionalists’ implicit racial biases.

Powell presumed that the rule of law is “the rule of good law,” and he developed, without 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 individuals 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.

Robert Cover identified four options available to a judge confronting a moral-formal dilemma: “[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 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 capacious 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 circumstances, 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 dilemma 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 power.”²⁸⁵ To the contrary, they may very well be less able to discern the sociological conditions 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 progressivism 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 abolitionist 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 positive 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 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 comprehends, 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 institutions, 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 comprehensive 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.