The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure

If one is known by the company that one keeps, Justice Powell no doubt wished for far better company for one of his final decisions, McCleskey v. Kemp. After the opinion’s release, legal and lay commentators quickly compared McCleskey to infamous decisions like Dred Scott, Korematsu, and Plessy. And a quarter of a century later, McCleskey has become firmly entrenched as a resident in the exclusive but not so desirable neighborhood of Notorious Cases, joined by a few new arrivals like Bowers v. Hardwick. Especially in the criminal law area, a legal scholar can invoke McCleskey confident that the reader will understand that the case is being used as shorthand for ‘cases in which the Supreme Court failed the Constitution’s most basic values.’ This raises the intriguing question of how Lewis F. Powell, Jr., a Justice known for his cautious, incremental decisions, could come to author an opinion upon which so much opprobrium has been heaped. 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