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  • Print publication year: 2020
  • Online publication date: June 2020

6 - Judicial Hesitancy and Majoritarianism

from Part II - The Landscape of Eighth Amendment Doctrine


The story of the Supreme Court’s Eighth Amendment jurisprudence has been one of judicial hesitancy and restraint. This chapter explores the reluctance of the Supreme Court Justices to apply their normative views to develop a clear constitutional line that limits excessive punishment practices. It then explains why the majoritarian principles of the evolving standards of decency doctrine make this judicial reluctance less warranted. The chapter concludes by exploring the possible consequences of the Court abandoning its hesitant posture and infusing the Eighth Amendment with normative values and limits on state and federal punishment practices.