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Deciding Death, Corinna Lain

Corinna Lain

When the Supreme Court decides death, how much does law matter? Scholars long have lamented the majoritarian nature of the Court’s Eighth Amendment “evolving standards of decency” doctrine, but a close look at the Court’s decisions in this area shows that their criticism misses the mark. Doctrine does not matter one whit in the Supreme Court’s “evolving standards” cases, but where majoritarian doctrine does not constrain the Court’s decision-making, other majoritarian forces do. To make this point, I first examine three of the Supreme Court’s most prominent (and in two cases, most recent) “evolving standards” decisions, along with the decisions …