Seed to Root to Branch: Briefwriters' Contributions to Supreme Court Capital Punishment Doctrine

Abstract

This study examines the contributions that briefwriters have made to the Supreme Court's death penalty jurisprudence in cases decided from 1963 to 1985. Three aspects of the briefwriters' contributions to evolving capital punishment doctrine are considered: (a) the use of social science research evidence relevant to death penalty issues, (b) literal textual similarities between briefs and the justices' opinions, and (c) diverse matters concerning the contents of briefs and their correspondence to capital punishment decisions. It appears that briefwriters have contributed significantly to the justices' use of social science evidence, even though the justices have not been persuaded to adopt the logical implications of such information. In addition, the justices have only rarely relied upon the briefs for the precise language that characterizes their opinions. The article concludes with a series of observations about the briefs, the briefwriters, and the law of capital punishment as announced in these Supreme Court cases.