Essay:
Jordan Steiker, The Long Road Up from Barbarism: Thurgood Marshall and the Death Penalty, 71 TEXAS L. REV. 1131 (1993).
 

Abstract:
The author argues that Justice Marshall's death penalty dissents are widely misunderstood both by those who agree with his substantive position and by those who oppose it. The relevant question is not why Justice Marshall chose not to adhere to the rule of law, but whether he adhered to the rules of stare decisis. Estlund concludes that Justice Marshall's unalterable opposition to the death penalty can be reconciled with his own conception of stare decisis precisely because his stance increasingly rested less on abstract moral conviction than on an emerging factual record.