Although the individual protections contained in the Bill of Rights never should be dependent upon the whims and caprices of majority rule, public opinion and the death penalty have always been inseparable. Mandery's work, titled A Wild Justice: The Death and Resurrection of Capital Punishment in America, is an important reminder of that link. There is no other way to say it but this: The Supreme Court 40 years ago blinked on capital punishment—blinked because of the public outcry at the very notion of eliminating the death penalty by court order rather than by the political process.

And in blinking, in their zeal to cobble together a majority that would permit executions, the justices who gave us our modern capital jurisprudence failed to adequately articulate a legal theory that supports the death penalty in the context of the Eighth Amendment's protections against "cruel and unusual" punishment. Supporting a practice that embodies the most irreversible act our government can do in our name, this is a baffling vacuum in constitutional law. And yet it persists, 40 years after the Court was supposed to have "fixed" the nation's capital laws.

Apart from reminding us of the Court's political sensitivities, and of the justices' willingness to avoid tough constitutional questions when they can, Mandery's book tells us that those states that pledged to do better after Furman never fulfilled their end of the deal. But we shouldn't merely blame Georgia, Texas or Alabama for wrongful capital convictions. In the name of federalism, the Court never really demanded that states fix the constitutional failures of their capital laws. And so states didn't—and 40 years later still haven't.

To read Mandery's book is to be reminded both of the Court's limitations and of the limitations of the bright men who inhabited it 40 years ago. What Mandery does not address, what will be left to future historians to address, are the reasons why the current justices of that court are so unwilling to confront the obvious deficiencies in the nation's death penalty laws. Mandery explains well why the justices fouled up Furman and Gregg. But what explains or excuses the Roberts Court continuously ignoring the constitutional rights of condemned prisoners and routinely justifying state practices that are both cruel and unusual?

To cap off this year of death penalty coverage, here is my interview with Mandery, conducted last week via email, and edited (a bit) for space.

COHEN: One of the many remarkable things about reading your book is realizing how similar (and still unanswered) are many of the big questions about capital punishment. There is still an enormous racial divide in capital cases. There is still a great deal of arbitrariness in the application of it. And yet the Supreme Court has shown virtually no interest lately in addressing these structural problems that were so fundamental to the Eighth Amendment debate in 1972 and 1976. What do you think accounts for that?