"In 1963 Supreme Court Justice Arthur Goldberg dissented from the Supreme Court's refusal to hear the death penalty case, Rudolph v. Alabama. The dissent was a compromise with Chief Justice Earl Warren, who feared taking on the issue, and far less ambitious than the document originally envisioned by Goldberg and his clerk Alan Dershowitz, who had drafted an expansive memorandum detailing racism in capital punishment. At Goldberg's request Dershowitz sent his memo to several organizations including the NAACP Legal Defense Fund."
In early November news of Goldberg’s dissent circulated through a suite of offices on the twentieth floor of 10 Columbus Circle in midtown Manhattan. Though one would never know it from appearances, this was home to the most important law firm in America. The twenty-six-story tower overlooking Columbus Circle was a grim appendage to the New York Coliseum, designed by Lionel Levy in the International Style, a branch of postmodern architecture the Nazis rejected as too austere. When the building opened in 1956, it had bad plumbing, inadequate heating, and was widely regarded as an eyesore. An architect with offices in the tower said the best thing about working in the building was that he didn’t have to look at it.
To add insult to injury, the firm’s founder, Thurgood Marshall, had been lucky to get this space. When Marshall tried to move the group from its initial, even more dilapidated home on West Forty-Third Street, real estate developers wouldn’t deal with him. Marshall had to turn for help to Hulan Jack, a Harlem politician who had worked himself up from janitor at a paper box company to Manhattan borough president. Jack imposed on Robert Moses, the legendary power broker who controlled the skyscraper under the auspices of the Triborough Bridge and Tunnel Authority, to lease the mediocre space to Marshall.
But to take a left turn out of the elevators and walk across the frayed blue carpet and into suite 2030 was to enter a lawyer’s Cooperstown. Here in the first office on the left was Constance Baker Motley, the Columbia Law School graduate who drafted the complaint in Brown. She would succeed Jack as borough president and later become the first African American woman to serve as a federal judge. Here three doors down was Derrick Bell, who, with Motley, had led the desegregation fight in Mississippi. Bell would become a professor at Harvard Law School, leave in protest over the school’s hiring practices, become dean of Oregon Law School, and help found the field of critical race theory. Here too was Jack Greenberg, Marshall’s handpicked successor, who had argued forty cases before the Supreme Court.
The National Association for the Advancement of Colored People Legal Defense Fund, sometimes known as the Inc. Fund or, more simply, LDF, had won countless legal victories since its founding twenty-three years earlier. LDF lawyers won Smith v. Allwright, a 1944 decision requiring Texas to allow African Americans to vote in primary elections. They prevailed in Morgan v. Virginia, the 1946 case desegregating interstate buses. They won cases protecting the rights of African Americans to serve on juries, striking down real estate contracts that precluded property sales to African Americans, and ensuring equal pay for black schoolteachers. And, of course, they won Brown.
In 1957, facing pressure from the IRS about LDF’s independence, Marshall broke LDF off from the NAACP. Thereafter the organization extended its already legendary reputation. In 1958 it protected the desegregation of Arkansas schools. In 1961 it won Holmes v. Dan ner, integrating the University of Georgia. In 1962 Bell and Motley won Meredith v. Fair, opening up the University of Mississippi. When Goldberg’s memorandum arrived in 1963, LDF’s lawyers were busy defending Martin Luther King, Jr., against contempt charges stemming from his protest of Birmingham segregation. Soon, thanks to LDF, the Supreme Court would dismiss all prosecutions stemming from the civil rights sit-ins.
Many people perceived the organization’s power as limitless. When the man who ran LDF’s primitive copying machine got into minor legal trouble, Greenberg offered to help. He replied, “Mr. Greenberg, I just want to get out of the fine, I don’t want to go to the Supreme Court.”
* * *
In early spring three LDF attorneys bought sandwiches at a delicatessen on Seventh Avenue, and carried them to the lawn in Central Park, where they sat and discussed the implication of Goldberg’s dissent. These three lunch partners could hardly have been more different.
Leroy Clark and Frank Heffron were each graduates of Columbia Law School, but the similarities ended there. Clark was black and a fiery critic of American racism. Heffron was white, and expressed himself more dispassionately; Clark called him “straight arrow.” Michael Meltsner was also white but, unlike Heffron, a free spirit. A native New Yorker, Meltsner graduated from Stuyvesant High School, Oberlin College, and Yale Law School, and seemed headed down a conventional path. After graduating from law school, though, Meltsner went to work at a kibbutz, not a law firm. During his lifetime he would write a novel, a play, take acting lessons, and become licensed as a family therapist. He would also run Northeastern Law School and help found a transformative movement in legal education. But he would never, not for even a day, represent clients for money.
Despite their different backgrounds, all three men perceived the same opportunity: Goldberg’s dissent had stirred the pot. The New York Times praised his opinion, saying it raised a “potentially far-reaching idea.” The Washington Post called it “an appeal to the brooding spirit of the law, to the intelligence of a future day.” Moreover, public support for the death penalty had been waning. In 1953, 68 percent of Americans supported capital punishment. In the recent Gallup poll this figure had fallen to 53 percent. The death penalty had lost momentum.
At the same time the three men understood that abolition wouldn’t come easily. Goldberg’s dissent also had generated substantial opposition. William Loeb, the publisher of New Hampshire’s conservative Manchester Union Leader, said the decision “can serve only to encourage would-be rapists.” The Stanford Law School professor Herbert Packer called out Goldberg’s true motives. “If one may venture a guess,” Packer wrote, “what Justice Goldberg may really be troubled about is not the death penalty for rape but the death penalty.” If capital punishment was to be abolished, he said, this change would need to come from the people, not the Supreme Court. Packer wrote: “Other social forces will have to work us closer than we now are to the point at which a judicial coup de grace becomes more than mere fiat.” The editors of the Harvard Law Review agreed, saying, “To hold that capital punishment is a method of punishment wholly prohibited by the eighth amendment would be to confuse possible legislative desirability with constitutional requirements.”
Furthermore Goldberg’s failure to mention race posed a daunting problem. LDF was dedicated to ending racism, first and foremost. If racism was not the problem, what basis did LDF have to become involved against the death penalty? Goldberg’s omission angered Clark. Surely racism in capital sentencing merited mention. Heffron wondered whether the act of publishing the memorandum implied that racism concerned the Court. After all, Rudolph was a black man accused of raping a white woman. The reality was that no one could be sure what the Court or even Goldberg meant. Meltsner worried too about the difficulties of proving discrimination.
The American criminal justice system was a complex scheme, with many variables at play, and courts generally didn’t allow statistical proof of discrimination. Despite the challenges, Meltsner and Clark felt that LDF should take on the issue. Even Heffron, generally the voice of restraint, felt they had nothing to lose. LDF received many requests from black defendants facing the death penalty. They generally accepted the cases even though capital cases are expensive to litigate, and LDF had limited resources. The lawyers simply found it impossible to say no. Heffron told his colleagues, “If we aren’t able to turn these cases away, we might as well focus on the real issue—capital punishment.”
Later the trio made their pitch to Jack Greenberg. Greenberg saw the complications of the issue, but nevertheless responded by appointing Heffron to study racial discrimination in rape sentencing. Whether this represented a change in LDF policy would later be the subject of some dispute. In his memoir Meltsner would write that at the time of this pivotal lunch, “capital punishment was not on the Fund’s agenda.” Greenberg would in turn disagree, saying that he had been considering a challenge to the death penalty for some time. Whether Greenberg or Meltsner is correct doesn’t matter much. From 1963 on, LDF influenced every major death penalty case in the United States and was the leading voice in the abolition movement, dominating all others.
* * *
Capital punishment should have been a natural issue for the American Civil Liberties Union. Formed in the 1920s, by a group that included Clarence Darrow and Felix Frankfurter, the ACLU had its hand in countless civil rights triumphs. In 1931 it successfully defended Yetta Stromberg, who displayed a Communist flag in defiance of California law. In 1943 its lawyers overturned the expulsion of two thousand Jehovah’s Witnesses who had refused to recite the Pledge of Allegiance. It was the ACLU that encouraged John Scopes to defy the Tennessee law prohibiting the teaching of evolution. The ACLU had also played a critical role in race cases, joining with the NAACP in successfully arguing against all-white primaries, and filing a friend-of-the-Court brief in Brown. With fifty thousand members, the ACLU was the most influential defender of civil liberties in the United States. Nevertheless, in 1963, the ACLU had no position on the death penalty. Officially the organization didn’t regard capital punishment as a civil rights matter.
The ACLU’s reluctance to become involved on capital punishment stemmed in part from an institutional aversion to being attached to causes. Many felt that the organization had suffered for becoming excessively associated with the labor movement during the 1930s. In the summer of 1964 the leadership of the ACLU was deeply divided over whether to become involved with the “Freedom Summer,” the Student Nonviolent Coordinating Committee’s effort to use white college students to register black voters in Mississippi. George Papcun, an Arizona civil rights leader, called on the ACLU to “support the Negro revolution totally.” Osmond Fraenkel, an eighty-one-year-old legend in the civil rights movement, successfully urged restraint. Fraenkel said the organization had to limit itself to advocating for civil liberties and not take up political causes. The reaffirmation of this principle made it more difficult for the ACLU to support abolition because the organization’s leadership didn’t see capital punishment as a civil rights issue. Emanuel Redfield, counsel to the New York Civil Liberties Union, argued that procedural abuses had been confused with civil liberties issues. Redfield also saw race as a double-edged sword. Racism by itself couldn’t suggest that capital punishment should be abolished, Redfield said, “for logically, this argument would call for the abolition of any other penalty when it can be shown that a higher percentage of a certain race is punished.” In his view the racism argument weakened the case against capital punishment.
The ACLU’s position would soon change. In the mid-1960s the ACLU asked Norman Dorsen, a law professor at NYU, to draft a memo outlining both sides of the capital punishment issue. Dorsen presented Redfield’s view but argued that regardless of the technical merits of the racism argument, the death penalty was “inconsistent with the spirit of civil liberties” and “dehumanizes a society which employs it.” At Dorsen’s urging the ACLU adopted an abolitionist policy in 1965, denouncing the death penalty as “inconsistent with the underlying values of a democratic system.” Even after issuing this statement, though, the ACLU aimed its efforts primarily at state legislatures rather than courts. The ACLU was heavily involved in defending conscientious objectors to the Vietnam War, and its leadership believed the organization didn’t have the resources to lead another major litigation effort. During the 1970s they would agitate more actively against the death penalty. By this time, though, LDF was firmly established as the leader of the litigation effort, and neither anyone nor any organization, including the ACLU, would ever challenge its authority in the matter.
* * *
LDF’s ascension to its position of unquestioned prominence had two profound consequences. The first was that LDF construed the death penalty as a problem of race. Its conception of the issue would evolve, but for the first several years of its involvement LDF would challenge capital punishment primarily on the basis of its discriminatory impact. Greenberg’s first initiative following the Central Park lunch was appointing Heffron to conduct a preliminary study of racism in rape sentences in southern states. Greenberg also tried, with limited success, to raise money from private foundations to support race research. The downside of this worldview is that racism is extremely difficult to prove. LDF’s first major death penalty case offers a vivid illustration of these difficulties. The chronology of the case also offers a sober reminder of how long it takes a capital case to wend its way through the labyrinth of the criminal justice system.
William Maxwell was a black man sentenced to die for the rape of a white woman. He was twenty-one years old when he committed his crime in 1961. Following his trial in 1962, Maxwell unsuccessfully appealed to the Arkansas Supreme Court. He then began a separate proceeding, known as a petition for a writ of habeas corpus, in which he challenged the constitutionality of his state court conviction.* Maxwell’s attorney argued that the jury selection procedure had been racially biased and that the Arkansas rape statute was discriminatorily applied. A federal district court judge, Gordon Young, denied that petition in 1964. Maxwell unsuccessfully appealed that ruling to the Federal Court of Appeals for the Eighth Circuit and then, also unsuccessfully, sought review in the U.S. Supreme Court in 1965.* In 1966, with LDF acting as his new counsel, he filed a second habeas corpus petition based on new evidence of racism. A second district court judge, Jesse Henley, rejected the new petition. The Eighth Circuit affirmed without holding a hearing. Maxwell appealed to the U.S. Supreme Court, which ordered the Eighth circuit to hold a hearing. Following the hearing, the Eighth Circuit again rejected all of Maxwell’s arguments in the summer of 1968. Maxwell appealed yet again to the U.S. Supreme Court, which heard oral argument in March 1969, deferred his case to the following term, heard additional argument the next May, and then in June 1970, again remanded Maxwell’s case to the Eighth Circuit to determine whether jury selection procedures had been proper. Finally, in January 1971, shortly before leaving office, Winthrop Rockefeller, the reformist governor of Arkansas, commuted the sentences of Maxwell and the fourteen other men on the state’s death row. Maxwell’s case took ten years from start to finish. Aside from the happy ending, Maxwell’s story is typical of death penalty cases, which take an average of eleven years from trial to execution.
Along this tortured and tortuous path the courts rejected all the various evidence of racism that Maxwell offered. His first attorney offered the testimony of an Arkansas prison superintendent saying that blacks were executed disproportionately. The Arkansas state courts rejected this evidence out of hand. When LDF presented Heffron’s study, the federal district court judge deemed it inconclusive. Heffron’s work consisted largely of interviews with court clerks. LDF later improved its earlier efforts with the assistance of Marvin Wolfgang, a sociologist from the University of Pennsylvania. Wolfgang led LDF to hire students from the Law Students Civil Rights Research Council and sent them to the south to collect data during the summer of 1965. The students examined the records of rape cases in twelve southern states between 1945 and 1965 and found that 110 out of 119 defendants who received death sentences were black. In Arkansas they found that a black man convicted of raping a white woman had an approximately 50 percent chance of receiving a death sentence, while a man convicted of raping a woman of his own race was sentenced to die only 14 percent of the time. The disparity could have been due to other forces, so the students examined the effect of twenty-nine other aggravating and mitigating factors, such as the defendant’s age and the amount of force used. From this evidence Wolfgang concluded that the odds were less than one in a thousand that the race disparity was random. Even this more sophisticated analysis failed. Judge Jesse Henley, the Eisenhower Republican who presided over the second habeas trial, questioned the sample size of the study and the choice of variables. More generally he questioned the use of statistics, which he called “elusive things at best,” and added, channeling Mark Twain, “it is a truism that almost anything can be proved by them.”
After the Supreme Court ordered the Eighth Circuit to rule on Maxwell’s appeal, Harry Blackmun, then an appellate court judge, ominously dismissed Maxwell’s statistical evidence. Professor Wolfgang’s study is “interesting and provocative,” Blackmun wrote, but “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 injustice.” Blackmun said he felt LDF’s pain. “We can understand and appreciate the disappointment and seeming frustration which Maxwell’s counsel must feel in again failing to prevail on a still more sophisticated statistical approach. They will ask themselves just how far they are required to go in order to prevail.” But Blackmun offered little hope: “We are not certain that, for Maxwell, statistics will ever be his redemption.” History would prove him sooth.
Twenty years later, in McCleskey v. Kemp, the Supreme Court would reject the most comprehensive and sophisticated analysis ever conducted of racism in capital sentencing. David Baldus, of the University of Iowa, his faculty colleague George Woodworth, and Charles Pulaski of Arizona State University examined more than 2,400 murder cases in Georgia during the 1970s, coding for the effect of 230 potentially aggravating or mitigating variables. Baldus, Woodworth, and Pulaski found that a defendant who killed a white person was 4.3 times more likely to receive the death penalty than a defendant whose victim was black, and that this race consciousness was evident both in decisions by prosecutors to seek the death penalty and by juries in deciding whether to impose it. Still, the Eleventh Circuit Court of Appeals and the Supreme Court rejected the evidence.
They did so because rejecting a punishment on the basis of racism would undermine the entire criminal justice system. If systemic evidence of racism was deemed sufficient to strike down the death penalty, why would it not call into question life imprisonment without parole or prison sentences of shorter length? If race affected prosecutor and jury decisions in death penalty cases, as the Baldus study proved, then surely it affected decisions in noncapital cases too. No court ever dared strike down a penalty on the basis of statistical evidence because establishing such a precedent would fundamentally undermine the existing order. Instead, to prove racism, judges would require a showing of discrimination in the specific case. With respect to systemic evidence of discrimination, courts would say something vague and unsatisfying, such as what the Arkansas Supreme Court said in Maxwell— “the statute for rape applies to all citizens”—and leave it at that.
The reluctance of courts to admit racism would remain a thorn in LDF’s side for the duration of the capital campaign. LDF would consistently have to fight the perception that it was trying to radically subvert the system. Efforts by conservatives and state and federal government attorneys to substantiate this perception—and LDF’s counterefforts to fight it—would be an issue in Furman and the defining dynamic of the 1976 cases.
The second consequence of LDF’s dominance was that it brought Anthony Amsterdam to the issue. If LDF was the most important law firm in the United States, Tony Amsterdam was surely the most important individual lawyer. No other attorney in American history has had such a profound influence on civil rights issues. In addition to playing a role in every major Supreme Court death penalty case argued since 1965, Amsterdam won important victories limiting the ability of police officers to stop and frisk suspects, protecting free speech, and in defense of the civil rights of the Black Panther Bobby Seale. He argued dozens of cases before the Supreme Court, once three in a single week. Amsterdam’s staying power is extraordinary. His chief rival for title of Most Influential Lawyer of the Twentieth Century, Thurgood Marshall, ultimately left LDF for a judicial career. Amsterdam, by contrast, is a lifer. His influence has extended over six decades and continues to this day. He wrote an amicus brief for the ACLU in Miranda in 1965,* and consulted with Seth Waxman, the former U.S. solicitor general, before Waxman’s 2005 Supreme Court oral argument in Roper v. Simmons, the case that struck down the death penalty for juveniles.
Amsterdam was raised in West Philadelphia, a middle-class melting pot of Jews, blacks, and Italian Americans. His father, Gustave, who had been a military lawyer during World War II, worked as a corporate executive. Amsterdam’s son Jon, an education reformer in Philadelphia, recalls his grandfather “as a New Dealer, a pragmatist who believed you could fix things if you could assemble the details. Like his son, he was hard working and a little bit distant.” Amsterdam’s mother, Valla, raised the family and volunteered for various organizations. Though they descended from a line of rabbis, the Amsterdams were not religious and named their son Anthony, which identified him more with the Italians in the neighborhood than the Jews. Young Tony liked to play sports, especially basketball, and occasionally competed in pickup games with Wilt Chamberlain.
Shortly after Tony turned twelve, he contracted bulbar polio, an uncommon version of the virus that attacks the nerves of the brain stem. Though Amsterdam avoided paralysis, he was confined to an iron lung for several days and spent weeks in quarantine. He has blocked out many details of the experience, but it clearly shaped him. During his absence Tony’s teammates elected him boxball captain. Amsterdam returned for the end of the season “mightily inspired to play better.”
From that point on, it seemed he did everything better. At Haverford College he majored in comparative literature, devoured seventeenth century French poetry, and graduated summa cum laude. “I pushed myself very hard,” he recalled, “but not to study in the sense of folks who are trying to accomplish something.” After graduation, he attended University of Pennsylvania Law School, though without any firm sense of why he wanted to be a lawyer. He spent much of his time at law school auditing art history classes at Bryn Mawr College, where he developed a special fondness for sixteenth and seventeenth century European mannerist paintings. Son Jon says, “Tony’s not just a law nerd, he’s very aesthetically attuned.” Tony took nature walks. He also wrote poetry, painted watercolors, and considered becoming an art historian. But he was drawn to the law and excelled at it. During his time away from his creative pursuits, he became editor in chief of the law review. After graduating first in his class in 1960, he headed to the Supreme Court to clerk for Felix Frankfurter.
By the time Amsterdam reached the Supreme Court, Frankfurter was eighty years old and in failing health. As a result he entrusted Amsterdam with even more than the substantial responsibility clerks normally have. Though Amsterdam wouldn’t acknowledge it, he drafted much of Frankfurter’s dissent in Baker v. Carr, a seminal voting rights case, which the justice cared passionately about. Congressional districting was precisely the sort of issue Frankfurter believed the Court should avoid. Brennan’s 1962 opinion striking down Tennessee’s gerrymandering scheme marked the end of Frankfurter’s dominance on the Court. Two weeks after the announcement of the decision, Frankfurter suffered his stroke. Amsterdam blamed the case. At the time Amsterdam couldn’t appreciate the irony of his work on Baker. The Court’s rejection of Frankfurter’s doctrine of judicial restraint opened the door to the arguments he would later make in the death penalty cases.
At the end of Amsterdam’s clerkship, Frankfurter recommended him to the U.S. Attorney for the District of Columbia, where Amsterdam worked for a year as a prosecutor, “to learn something from the inside,” as he put it. Then, at the age of twenty-six, Amsterdam returned to his alma mater as a law professor, where he began to build his unparalleled reputation. The secret of Amsterdam’s success was that he outworked everyone. Tall, rail thin, with a long, patrician nose and fine hair brushed to the side, Amsterdam sat in his office, crowded with books, chain-smoked thin cigars, swilled strong black coffee and diet soda, and burned the candle at both ends. Michael Meltsner says he worked hard at LDF, but nothing compared to Amsterdam. The people around him believed that Amsterdam read every decision by the circuit courts of appeals and slept only a few hours a night.
Impossibly, Amsterdam’s reputation for competence exceeded his reputation for diligence. The tales of his prodigious memory sound apocryphal. In one infamous incident Amsterdam was arguing a case before the D.C. Circuit Court of Appeals when he referenced an old Supreme Court case, which he cited from memory by page and volume. The judge wasn’t buying Amsterdam’s argument and dispatched an assistant to find the case. He couldn’t locate it and questioned Amsterdam’s citation. “Your honor,” said the young prosecutor, “your volume must be misbound.” Sure enough, it was.
Everyone in this universe has a Tony Amsterdam fish story. In one, Amsterdam dictated a brief from memory from a pay phone at four o’clock in the morning. A second tale is the sort to drive high achievers mad. Two months before law school graduation, Amsterdam hadn’t begun his required law-review note. The paper he dashed off, “Void for Vagueness Doctrine in the Supreme Court,” reshaped First Amendment law.
Everyone in this universe also shares the same ultimate judgment of Amsterdam. Edward Lazarus, author of a memoir of his year clerking for Harry Blackmun, called Amsterdam “the finest lawyer of his generation.” Franklin Zimring, a lawyer and criminologist at the University of California, says, “Amsterdam was, and deserved to be, as early as 1968, for American academics, its only genuine rock star. He was a hero to many people, and a hero of mine. He was a phenomenally gifted lawyer and litigator.” Dershowitz calls Amsterdam a “terrific lawyer and a contemporary role model.” Seth Waxman says, “God broke the mold when he created Tony.”
* * *
Amsterdam got involved with LDF shortly after the Central Park lunch. One of LDF’s early death penalty cases was an appeal by Charles Hamilton, a black man who had been sentenced to die for breaking into a home with intent to rape. Caleb Foote, a Berkeley law professor and social activist, assisted LDF on the case. He was unable to make a strategy meeting in New York and asked Amsterdam to go in his place.
Amsterdam had not previously debated the death penalty and didn’t have a position on it. “I didn’t start by becoming an abolitionist. I really had never given it much thought,” he recalled. It was the framing of the death penalty as a race issue that attracted Amsterdam. His real interest was inequality or, as he called it, “underdogism.” Amsterdam told Time magazine that a free society must pay attention to all views. “After the revolution, I will be representing the capitalists,” he said. At the Hamilton meeting Amsterdam impressed LDF. “They seemed to think my ideas were useful,” Amsterdam recalled with characteristic understatement. Greenberg invited Amsterdam to speak at an LDF conference for cooperating attorneys at Dillard University in New Orleans. Amsterdam dazzled everyone there and soon began consulting with LDF more extensively.
Amsterdam’s interest in race issues and LDF’s conception of the death penalty mutually reinforced each other. Amsterdam urged LDF to expand upon Heffron’s research, and it was at his initiative that LDF hired the sociologist Marvin Wolfgang to study sentencing in southern rape cases. Amsterdam worked closely with Wolfgang, and soon became the lawyer with the most in-depth knowledge of the statistical evidence of racism. When the Eighth Circuit heard Maxwell’s appeal, it was only natural that Amsterdam would argue the case.
From LDF’s standpoint the argument went exceedingly well. Just before it began, one of Blackmun’s clerks quietly told Meltsner and Amsterdam that his boss “personally hated the death penalty and was torn up by the cases coming up.” At the argument Amsterdam focused on the problem of discriminatory application. Blackmun thrust several pointed questions at Amsterdam, each of which Amsterdam parried successfully. When Blackmun asked Amsterdam why he thought the Constitution precluded executing a black man for raping a white woman, but didn’t preclude executing a white man for raping a black woman, Amsterdam replied that “once the Negro situation was remedied, the white situation would take care of itself.” When Blackmun criticized Wolfgang’s study for being too small and for not including anyone from Maxwell’s county in the sample, Amsterdam said that statistical methods required only that the sample be representative, not comprehensive. “I had to explain to him that he didn’t know his mathematics,” Amsterdam recalled later.
The irony of Amsterdam’s statement, “he didn’t know his mathematics,” is that Blackmun had a math degree from Harvard. While the Maxwell argument may have been a success from LDF’s standpoint, it also marked the beginning of a complicated relationship between Amsterdam and Blackmun. Amsterdam grated on Blackmun, whose files contain many condescending asides concerning LDF’s lead counsel. “I suspect I am too far removed from academic days to understand the professorial mind,” Blackmun wrote after reading one Amsterdam brief. He complained in his bench notes that Amsterdam’s “voice squeaks” and once jotted this single word during an Amsterdam oral argument: “Ugh.” But Blackmun also respected Amsterdam. As a judge Blackmun kept notes on the attorneys who appeared before him. Following the Maxwell argument, Blackmun wrote, “tall, 28, suave” and assigned Amsterdam a grade of A-. Following his retirement, Blackmun would recall Amsterdam fondly.
LDF had never before seen an advocate with such composure and deftness on his feet. With this performance Amsterdam established himself as the de facto head of the abolition campaign, a position he would maintain through the triumph of Furman, the agonizing defeat in Gregg v. Georgia, the case that undid Furman, and thereafter behind the scenes, for another forty years. The legal fight he would captain can be well compared, in its length and complexity, only to the battles for the civil rights of African Americans. In many respects, though, the death penalty crusade was more complicated. Desegregation was hardly easy, but Brown was predicated on an unambiguous constitutional principle, and the Supreme Court had suggested a willingness to take on the issue in earlier decisions. Amsterdam and LDF had no such advantage.
The death penalty war, which continues today, would prove as heartrending and byzantine as any prolonged military campaign. It would be fought in every imaginable forum, from the lowest tribunal in remote Alabama to the hallowed halls of the Supreme Court. It would be fought at the federal level and in almost every state. It would be fought in the streets and in the ivory tower of the academy. These scholarly battles could themselves have consumed several lifetimes, as the abolitionists sought to collect and marshal data to address the various factual issues that would shape public and judicial opinion. Did the death penalty deter? Was it cost effective? Could it be fairly applied? It was a leviathan of an undertaking, without precedent in American history. No one thought it could be done, not even many of the lawyers at LDF, who understood the difficulty of overcoming centuries of precedent. If Arthur Goldberg couldn’t persuade his colleagues, how could they? “The legal acceptance and historical force of the death penalty were considered a given,” said Jack Himmelstein, a young LDF attorney. “It was the power of Tony Amsterdam’s mind and heart that said, ‘That doesn’t have to be the case.’”
Excerpted from "A Wild Justice" by Evan J. Mandery. Copyright 2013. All rights reserved. W.W. Norton and Co.
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