To the Editor:

As one of those inter­viewed by Evan Man­dery for his metic­u­lously researched book, “A Wild Jus­tice,” about the Supreme Court’s cap­ital pun­ish­ment deci­sions, I am pleased that it received the praise it deserves from David Oshinsky (Sept. 1). But it is not the case that “no source for the meeting” ending in the agree­ment between Jus­tices Stewart and White that led to the court’s deci­sion in the Furman case “appears to exist.” The ver­batim pri­vate con­ver­sa­tion between the jus­tices is, of course, unknown, but there is no doubt the meeting was held, that White’s posi­tion shifted and he became the deci­sive fifth vote. By searching out the law clerks who worked closely with Stewart and White, Man­dery did what no author before him (including Oshinsky and me) had dared. As a result, mul­tiple sources in the cham­bers of both jus­tices sup­port on the record his ver­sion of what happened.

The writer is the Matthews dis­tin­guished uni­ver­sity pro­fessor of law at North­eastern Uni­ver­sity School of Law. He was one of the lawyers in Furman v. Georgia.

Read the article at The New York Times →