Thurgood Marshall

“ For example, if the evidence clearly demonstrated that capital punishment served valid legislative purposes, such punishment would, nevertheless, be unconstitutional if citizens found it to be morally unacceptable. A general abhorrence on the part of the public would, in effect, equate a modern punishment with those barred since the adoption of the Eighth Amendment. There are no prior cases in this Court striking down a penalty on this ground, but the very notion of changing values requires that we recognize its existence. ”

“ There is no holding directly in point, and the very nature of the Eighth Amendment would dictate that unless a very recent decision existed, stare decisis would bow to changing values, and the question of the constitutionality of capital punishment at a given moment in history would remain open.
Faced with an open question, we must establish our standards for decision. ”

“ There is no violation of the principle of stare decisis in a decision that capital punishment now violates the Eighth Amendment. The last case that implied that capital punishment was still permissible was Trop v. Dulles, supra, at 99. Not only was the implication purely dictum, but it was also made in the context of a flexible analysis that recognized that as public opinion changed, the [408 U.S. 238, 330] validity of the penalty would have to be re-examined. Trop v. Dulles is nearly 15 years old now, and 15 years change many minds about many things. ”