Head v. Heart: How Supreme Court justices wrestle with tough decisions

Rick Klein, Olivier Knox, Richard Coolidge, and Jordyn Phelps
Power Players

Top Line

When the Supreme Court takes on a politically heated case, as it recently did with two cases involving gay marriage, the justices are more likely to listen to their heads over their hearts.

So say Tim O’Brien and Martin Clancy, veteran journalists and authors of the new book “Murder at the Supreme Court.”

“The justices often vote the law as opposed to their own feelings,” former ABC News producer Martin Clancy tells Top Line.“I mean time and time again, we've discovered in notes of Supreme Court conferences where justices are really conflicted.”

Clancy and O’Brien’s book looks specifically at how the Supreme Court has wrangled with the death penalty historically, but the book also sheds light into how the justices avoid getting personal opinions involved in their rulings.

“Sometimes justices will vote to uphold capital punishment even though they personally oppose it,” says retired ABC News Law Correspondent Tim O’Brien. “No justice now thinks it's unconstitutional, per se, but a majority have doubts. We know that, about how it works.”

Clancy tells a story about Justice Felix Frankfurter voting to uphold the death penalty in a 1946 case despite his personal objections. The case involved a 17-year-old Louisiana boy Willie Francis, who was facing the electric chair for a second time after he was unsuccessfully executed the first time when the chair malfunctioned.

“Frankfurter, who voted yes…went behind his justices backs, as it were, to Louisiana to try and get the verdict overturned,” Clancy recounts. “It never happened. The boy was executed.”

To hear more of O’Brien and Clancy’s analysis of the Supreme Court’s decision-making process, and to hear about how public opinion and state actions influence the Court, check out this episode of Top Line.

ABC's Eric Wray, Betsy Klein, Hank Brown, and Gary Rosenberg contributed to this episode.