Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

45  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  decisions, few Americans were prepared to defend Dred Scott or (to a lesser extent) Korematsu . 191 Yet, since the issues adjudicated in these cases had been rendered largely obsolete, the rulings became curio- sities rather than irritants. If this observation is correct, there may be a one-way ratchet of sorts at work with regard to controversial Court decisions on issues where a dramatic shift in public opinion subse- quently occurs. Apparently, the Justices receive enormous credit for correctly predicting the future, but not much blame for incorrectly predicting it, at least when the underlying issue quickly loses its sa- lience. Concretely, the Court’s heroic decision in Brown seems, in the public mind, vastly to outweigh ignoble judicial deeds such as Dred Scott , Plessy , Korematsu , and the like. 192 On other issues, public opinion changes, while the salience of the issue remains high. In this category of cases, significantly, the Justices generally enjoy second chances to get their decisions right–that is, opportunities to reconsider their initial ruling, and if necessary, to revise or retract it, in light of hostile public opinion. Furman v. Georgia may be the best exemplar of this phenomenon. In 1972, Supreme Court Justices read the tea leaves of public opinion as indicating that capital punishment in the United States was on the road to extinction. 193 Opinion polls in the mid-1960s revealed, for the first and (thus far) only time in American history, national pluralities opposed to capital punishment. 194 A majority of the Justices decided to give the death penalty a nudge toward constitutional oblivion. 195 Yet, public opinion on the death penalty shifted dramatically in the 191 On Korematsu , see, e.g., The Autobiography of William O. Douglas: The Court Years, 1939-1975, at 280 (1980) (recanting his vote in Korematsu ); Irons, supra note __, at 362 (noting a 1983 report to Congress by the Comission on Wartime Relocation, which concluded that the internment of Japanese-Americans was a “grave injustice” resulting from “race prejudice”). On Dred Scott , see Fehrenbacher, supra note __, at 573 (“as time passed, it [ Dred Scott ] was an embar- rassment–the Court’s highly visible skeleton in a transparent closet”); Downes v. Bidwell, 182 U.S. 244, 273-74 (1901) (noting that the Civil War had “produced such changes in judicial, as well as public sentiment, as to seriously impair the authority of that case”). 192 Apparently, the myth of the Court as countermajoritarian hero is just too attractive to resist. See Klarman, Civil Rights , at 19-23. 193 See Delavan Dickson, The Supreme Court in Conference: 1940-1985, at ?? (2001) (conference notes from Furman v. Georgia : Justice Brennan noting that support for abolition of the death penalty has increased during the twentieth century; Justice Stewart predicting that “[s]omeday the Court will hold that death sentence is unconstitutional”). See also Furman , 408 U.S. 238, 313 (1972) (White, J., concurring) (observing that the death penalty “has for all practical purposes run its course”); Jeffries, supra note __, at 413-14. 194 See Jeffries, supra note __, at 406; Carole S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355, 410 & n.273 (noting that in 1966 a Gallup poll, for the first time ever, revealed more Americans opposing than favoring the death penalty). 195 See Jeffries, supra note __, at 413.