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This dissertation is a study of the problem of judgment in liberal society, specifically focusing on legislation, legal opinion, scholarly commentary, and popular writing related to death penalty decisions in the United States. Since reinstating the constitutionality of capital punishment in 1976, the Supreme Court has struggled to secure moral and legal grounds upon which to justify the imposition of death sentences. However, as it becomes increasingly difficult to draw on normative standards or ethical absolutes to legitimate collective efforts to do justice, the Court has had to find new ways to sanction death penalty decisions. This explains why, in its rulings on death penalty cases over the past twenty years, the Court has shifted the grounds of judgment away from the defendant's actions and state of mind, and toward the victim's experience of pain. In the absence of shared criteria with which to authorize the weak and partial attempts of human beings to do justice, the Court turns to the victim for an expression of incontrovertible truth with which to sanction its judgments in and for a pluralist society. In chapter one, I show how the Court conceives of the problem of judgment in its death penalty jurisprudence. In the second chapter, I demonstrate how the Court's faith in a rational solution to the problem of judgment is challenged by evidence of racial discrimination in death penalty decisions. In chapter three, in a reading of Tison v. Arizona (1987), I demonstrate how the Court encourages judges and jurors to appeal to social norms to guide their sentencing discretion in capital cases. In the fourth chapter, I analyze the Supreme Court's decision in Payne v. Tennessee (1990), which shifts the grounds of judgment away from social norms to the victim's incontrovertible experience of pain. Finally, in chapter five, I locate my analysis of American death penalty jurisprudence in the context of an ongoing discussion of judgment in modern legal and political philosophy. By analyzing how the Supreme Court defines and addresses the problem of judgment in its death penalty jurisprudence, I offer insight into the promise as well as the perils of modern liberalism. At the same time, the dissertation contributes to a larger project to imagine judgment without shared criteria.

I begin with a quotation from Hannah Arendt’s The Origins of Totalitarianism: “An insight into the nature of totalitarian rule . . . might serve . . . to introduce the most essential political criterion for judging the events of our time: will it lead to totalitarian rule or will it not?”¹ I take this quotation as an invitation—an invitation to remind us that what we are called upon to do as we consider questions about the banality of evil and the threat of totalitarianism is to judge. To judge is not to answer questions as matters of knowledge