S8 Ep987: Josh Blackman traces the modern history of the death penalty from the 1972 Furman case to 1976's Gregg v. Georgia. He critiques the "evolving standards of decency" doctrine used by the Warren Court, arguing it reflects the views of elites rather than the

The Supreme Court's 1972 Furman v. Georgia decision, which temporarily halted all executions in the U.S., was based on the controversial 'evolving standards of decency' doctrine—a concept introduced by Chief Justice Earl Warren in 1958. Josh Blackman argues this doctrine, meant to reflect societal progress, instead reflects the views of elite legal and media circles rather than the broader public. He contends that the judiciary’s shift toward relying on these elites—people in Washington, Georgetown, and the New York Times—created a self-reinforcing bubble that distorts constitutional interpretation. This elite-driven standard, applied in later cases like Gregg v. Georgia and Atkins v. Virginia, has made the death penalty nearly unenforceable due to endless appeals and procedural roadblocks. Blackman warns that the court’s overreach, beginning with Brown v. Board of Education, has led to a dangerous concentration of power, where unelected justices effectively govern on moral and policy issues. The result? Some death row inmates die of natural causes while waiting decades for execution, raising the absurd claim that prolonged incarceration on death row may itself be 'cruel and unusual.' Blackman traces this institutional drift to the Warren Court’s assumption of moral authority, fueled by its insulated elite culture and lack of accountability.