For many of the 3,682 men and women on death rows across the nation, and their families, this election is literally a matter of life or death. With one or more appointments to the Supreme Court, the next President will probably change the balance of power in the Court's review of capital cases. The Court could play a greater role in restricting the use of the death penalty, or it could give the states free rein to carry out more and more executions.

Neither George W. Bush nor Al Gore is going to appoint Justices like the late William Brennan and Thurgood Marshall, who believed that capital punishment violates the Constitution's prohibition of cruel and unusual punishment. But the next President's appointments will have an enormous impact on how much death is used as a punishment in the next several decades and the fairness of the process by which people are denied their lives and liberty in the criminal courts.

Bush has expressed his admiration for Justices Antonin Scalia and Clarence Thomas, who have vigorously maintained that the Constitution allows states to execute just about anyone–children, the mentally retarded, even the innocent–and provides virtually no protections, not even a decent court-appointed lawyer, to a person facing death.

Their approach to capital cases is much like the one taken by judges in Texas, which dispatches people to its busy execution chamber in assembly-line fashion. Bush has defended the Texas system, claiming that the condemned had "full access to the law," while presiding over 144 executions during his six years as governor. No other state has carried out more than eighty executions in the past twenty-five years.

Al Gore will probably appoint moderates like the two Justices appointed by Bill Clinton, Ruth Bader Ginsburg and Stephen Breyer, whose votes reflect their views that the Constitution restricts the ways in which states may impose death and that the federal courts have a role to play in deciding what those restrictions are and in keeping the death penalty within them.

Many of the Court's most important capital decisions have been decided by a 5-to-4 vote. In those cases the outcome has usually been determined by Justices Sandra Day O'Connor and Anthony Kennedy. When they join with Scalia, Thomas and Chief Justice William Rehnquist, the death sentence is upheld–as in two 5-to-4 decisions in Virginia cases this year. In one of these, Weeks v. Angelone, they upheld a death sentence even though the judge misled the jury regarding how it was to reach its sentencing decision. In the other, Ramdass v. Angelone, the defendant was not allowed to tell the jury that he would not be eligible for parole if sentenced to life in prison instead of death. Ginsburg, Breyer, John Paul Stevens and David Souter dissented in both cases.

If either O'Connor or Kennedy joins the Court's four moderates, the outcome is different. Just how delicate the balance is was illustrated by the 1989 case of Penry v. Lynaugh. John Paul Penry is a mentally retarded man sentenced to death in Texas. Justices O'Connor and Kennedy were part of a 5-to-4 majority holding that the Constitution does not prohibit the execution of the mentally retarded, but Justice O'Connor cast the critical fifth vote for setting aside Penry's death sentence because the jury was not instructed that his retardation should be considered in mitigation.

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