482
Thomas, J., concurring
agenda for social and legal change depended on an activist judiciary; their "unmistakable preference for the courts, especially the federal courts," came as a direct "response to the Supreme Court's willingness to redraw America's ethical and legal map, a task state houses and executive mansions were slow to tackle." Meltsner 25, 71.4
In mustering every conceivable argument—"ethical, legal, polemical, theological, speculative, [and] statistical"—for abolishing capital punishment, id., at 59, the Fund lawyers and other civil rights advocates supplied the empirical and rhetorical support for the observations of Justices Douglas, Marshall, and Stewart with respect to race bias. See Brief for Petitioner in Aikens v. California, O. T. 1971, No. 68- 5027, pp. 50-54; Brief for Petitioner in Jackson v. Georgia, O. T. 1971, No. 69-5030, p. 15 ("The racial figures for all men executed in the United States for the crime of rape since 1930 are as follows: 48 white, 405 Negro, 2 other. In Georgia, the figures are: 3 white, 58 Negro") (footnotes omitted). See also Brief for NAACP et al. as Amici Curiae in Aikens v. California, supra, at 13-18, and App. A (discussing, in particular, history of South's use of death penalty in rape cases prior to Civil War, when it was typical for rapes or attempted rapes committed by black men upon white women to be punishable by mandatory death or castration, while rapes committed by whites were not punishable by death); Brief for Synagogue Council of America et al. as Amici Curiae in Aikens v. California, supra, at 31 ("The positive relationship between the death penalty and race is strong, but where the crime involved is rape and more particularly, as
4 See also Meltsner 25: "[L]awyers attempting to thrust egalitarian or humanitarian reforms on a reluctant society prefer to use the courts because lifetime-appointed federal judges are somewhat more insulated from the ebb and flow of political power and public opinion than legislators or executives."
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