"Getting Emotional Over the High Court"
 The words "Equal Justice Under Law" are carved above the Supreme Court's entrance, summing up the aspirations of a nation. Nominee John Roberts has observed that when he walks up the marble steps to that entrance there is "a lump in my throat." Some skeptics brush aside his comment as a cynical ploy; I find it evidence that the nominee understands the road ahead.
On May 24, 1979 I attended a dinner at the Supreme Court given to honor scholars of it. While I had been to the Court many times, I had never been invited to it. For a young academic it was an unforgettable moment, one that produced my own lump in the throat.
But for one of the few times in my life I was late and forced to wait in the hallway outside the banquet room. As I paused, the Hollywood stereotype of a Chief Justice arrived with his wavy silver hair and resonant voice. I now had something in common with Warren Burger: we were both late.
Most academics then and today rank Burger as one of the least effective of twentieth-century Chief Justices. He was also a justice who reputedly suffered few inner agonies. He did, however, love the Court and its history.
The day was also special for Burger. He and the Court had to decide the fate of John Spenkelink, a Florida murderer. Spenkelink in 1973 killed his traveling companion, Joseph Szymankiewicz, by shooting him twice and then beating him in the head with a hatchet.
Spenkelink's case had generated anti-death penalty protests outside the Court. The national press portrayed Spenkelink's fate as the test case for the resumption of capital punishment in Florida, a state notorious for putting people to death. On May 23 Justice Thurgood Marshall voted to grant a request for a full hearing to stay the execution. The following day, under Burger's leadership, the Court refused.
It was from that conference that Burger arrived to join me.
I extended my hand to a person I had never meet, he took it, and after an awkward pause, informed by knowledge that he had spent the previous hours dealing with Spenkelink, I said: "It must have been a very trying day."
Burger responded with professionalism tinged with weariness: "Yes," he said, "but we must all do our duty."
The invocation ended, the Chief Justice entered the hall, and the audience rose in applause.
Early the following morning, John Spenkelink uttered last words that have become famous in the history of the death penalty. "Capital punishment: them without the capital get the punishment."
As I watched Judge Roberts, I thought of Warren Burger, of John Spenkelink, of duty and death, and of the consequences for the nation of this nominee's future choices. I was gripped by these simple truths about the Court: it is a distinctly human institution, who sits on it makes a difference; and when Americans walk up to the words "Equal Justice Under Law" they too should have a lump in their throat.
Listen to President Hall's commentary on NPR >>
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