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

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  46 mid-1970s, perhaps partly in reaction to the Court’s ruling. 196 Within four years of Furman , thirty-five state legislatures had manifested their desire to retain the death penalty, by revising their statutes to take account of the objections raised in Furman . 197 The Justices, plain- ly influenced by this resounding popular endorsement of the death penalty, 198 switched gears in 1976, sustaining the constitutionality of the death penalty, so long as administered in a suitably constrained manner. 199 We know from subsequent experience in California that determined judicial resistance to implementation of the death penalty in the face of overwhelming popular approval can injure a court’s stature. 200 The United States Supreme Court avoided incurring the public’s wrath because it took advantage of post- Furman opportu- nities to align its death penalty jurisprudence with national opinion. The so-called “switch in time” of 1937 likewise illustrates how the iterative quality of constitutional interpretation affords the Court opportunities to conserve its institutional prestige by adjusting or even retracting initially controversial decisions. President Roosevelt threatened to destroy the Court in response to its 1936 decisions invalidating the Bituminous Coal Conservation Act, the Agricultural Adjustment Act, and the New York minimum wage. 201 The very next year, the Justices took advantage of opportunities to reconsider their position, and by doing so, helped ensure the defeat of Roosevelt’s Court-packing plan. 202 Many commentators have interpreted Terry 196 See Jeffries, supra note __, at 414 (reporting Gallup polls and concluding that the increase in public support for the death penalty after Furman was “so sharp that it seems almost certain to have been a negative reaction to the Court’s decision”); Steiker & Steiker, supra note __, at 411-12 (“it seems fair to say that Furman galvanized political opposition to abolition”). 197 Gregg v. Georgia, 428 U.S. 153, 179-80 (1976) (plurality opinion); Jeffries, supra note __, at 414; Steiker & Steiker, supra note __, at 40. 198 See Dickson, supra note __, at ?? (conference notes in Gregg v. Georgia : Justice Stewart noting that thirty-five legisla- tures have revised their death penalty statutes since 1972, thus indicating that “evolving standards of common decency” continue to support the death penalty; Justice Powell emphasizing the recent state statutes). 199 See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976). 200 See, e.g., Robert S. Thompson, Judicial Independence, Judicial Accountability, Judicial Elections, and the California Supreme Court: Defining the Terms of the Debate, 59 S. Cal. L. Rev. 809 (1986). 201 See Carter v. Carter Coal Co., 298 U.S. 238 (1936); United States v. Butler, 297 U.S. 1 (1936); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). 202 The relevant decisions are West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); and Steward Machine Co. v. Davis, 301 U.S. 548 (1937). For the impact of these decisions on the Court-packing plan, see Cushman, supra note __, at 18-23; Alsop & Catledge, supra note __, at 144-47. Cushman, of course, denies that these decisions represented, in any strong sense, “reconsideration” of the decisions from the preceding term.