Three decades of tinkering with the machinery of death
Malsin, Mikaela Janet
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This dissertation offers a rhetorical history of the Supreme Court’s capital punishment jurisprudence through four pivotal cases, each capturing the rhetorical milieu of a decade: the 1970s, 1980s, and 1990s, respectively. I interrogate the fractured judicial voice, constitutive rhetoric, and pathos as I analyze Furman v. Georgia, McCleskey v. Kemp, Payne v. Tennessee, and Callins v. Collins. My readings suggest that in each capital punishment case, the justices wrangled over the nature of rhetoric and its role in justifying or invalidating capital punishment. Each analysis, then, identifies the fundamental rhetorical negotiations that animated the justices’ opinions. I argue that in Furman, the question of capital punishment’s constitutionality revealed a broader conflict over the Court’s role in making decisions of life and death. I isolate three loci of the rhetorical struggle at the heart of that conflict, drawing upon the rhetoric of social change, the rhetoric of history, and stasis theory to illuminate the rhetoricity of the Court’s dilemmas. I read McCleskey v. Kemp as a negotiation over the constitutive functions of judicial rhetoric, in which the majority opinions rejected a notion of the Court’s rhetoric as constitutive even as they constituted particular visions of social scientific evidence and of racial discrimination. By contrast, the minority opinions in McCleskey embraced the constitutive functions of judicial rhetoric. I assess the last two cases from the early 1990s as conflicting approaches to the role of emotion in capital punishment decisionmaking. The majority’s decision in Payne validated the emotional undertones of disgust and vengeance toward the defendant and compassion for the victims, while Blackmun’s dissent in Callins focused on compassion for the defendant. The Court in Payne also deflected the emotionality of its own rhetoric, while the Callins dissent explicitly leveraged its emotionality. I conclude with a discussion of the current state of the Court’s death penalty jurisprudence and reflect upon the historical and rhetorical implications of the project.