In 1968 , McComb joined the dissenting opinion of Justice Louis H. Burke in '' Dillon v. Legg '' , in which the Court 's majority established the tort of negligent infliction of emotional distress ; Burke and McComb argued that the majority ruling opened up defendants to " potentially infinite liability beyond any rational relationship to their culpability . " In the 1972 case '' California v. Anderson '' , in which the majority ruled 6 – 1 that the death penalty was unconstitutional , McComb was the lone dissenter , arguing that the death penalty deterred crime , noting numerous Supreme precedents upholding the death penalty 's constitutionality ( including 11 in the prior three and a half years ) , and stating that the legislative and initiative processes were the only appropriate avenues to determine whether the death penalty should be allowed . The majority 's decision spared the lives of 105 death row inmates , including Sirhan Sirhan , assassin of Robert F. Kennedy , and serial killer Charles Manson . McComb was so upset about the '' Anderson '' decision that he walked out of the courtroom . Nine months later , the people of California would pass Proposition 17 by a 2 – 1 margin , reinstating the death penalty as an option for all prosecutions that took place after the adoption of Proposition 17
assassin of Robert F. Kennedy
Assassination of Robert F. Kennedy
Marshall F. McComb