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The SCOTUS Lineup on the Death Penalty

The Supreme Court today announced a unanimous per curiam opinion in Dunn v. Madison.  I'll repeat the Heritage Foundation's summary of the case:

[T]he Court reversed a decision of the Eleventh Circuit in an Antiterrorism and Effective Death Penalty Act (AEDPA) case. AEDPA provides that a state prisoner is entitled to federal habeas relief only if the state trial court's adjudication of the prisoner's claim "was contrary to, or involved an unreasonable application of, clearly established Federal law." In this case, an Alabama trial court sentenced Vernon Madison to death for murdering a police officer. Awaiting execution, Madison suffered several strokes and petitioned for habeas, asserting that he had become incompetent to be executed. Experts testified that although Madison could not remember the "sequence of events from the offense to his arrest to the trial or any of those details," he did understand he was "tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime." The district court denied Madison's petition but the Eleventh Circuit reversed. Today, the Supreme Court reversed, holding that no Supreme Court precedent has "'clearly established' that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case."


Ginsburg, joined by Breyer and Sotomayor concurred, writing that while AEDPA precludes consideration of the question in this case, the question of "whether a State may administer the death penalty to a person whose disability leaves him without memory of him commission of a capital offense" "warrant[s] full airing." Breyer also concurred, writing separately to (once again) call into question the "unconscionably long periods of time that prisoners often spend on death row awaiting execution."


Perhaps the more interesting topic here is trying to read the tea leaves on the current Supreme Court lineup on the death penalty.  Up to now, it's been reasonably clear that there are four votes in favor (Roberts, Thomas, Alito and Gorsuch) and two against (Ginsburg and Breyer) (in my first edition, I mistakenly said Ginsburg and Kennedy.  I thank Doug Berman for his catching this).  There has been some doubt about the other three.  I now want to hazard my guess.

Although Justice Sotomayor very conspicuously did not join Justice Breyer's "unconstitutional-in-all-circumstances" Glossip dissent, her views since then seem to me to signal that she will do so in the near future.  Both her language and, so to speak, her body language, tell me she's going to "evolve."

Justice Kennedy is a different matter entirely.  There was ample reason to suspect, given his language in Kennedy v. Louisiana and Roper v. Simmons, that, a few years ago, he was moving in an abolitionist direction.  The fact that he did not write separately in Glossip, and fully joined Justice Alito's opinion for the Court holding point-blank that "the death penalty is constitutional" was, I thought, the single most important thing about that case.  His silence today is another good sign.  I now think it extremely unlikely that Justice Kennedy would vote to outlaw capital punishment, or even adopt any further restraints on its application.  

I'm not sure of the reasons for what I believe to be Justice Kennedy's firming up on this subject, but they might include (1) that the death penalty is inflicted less frequently now, (2) the existence of some high-profile cases like the Boston Marathon bomber and the Charleston church mass killer, where blanket opposition to the death penalty is difficult for a person with a normal conscience to maintain, and (3) Justice Kennedy's respect for precedent, which is not ambiguous on this subject.

This leaves Justice Kagan.  Her refusal to join today's concurrence pushes me to believe what I've been thinking for some time, to wit, that Justice Kagan will not vote to outlaw the death penalty in all circumstances.

Justice Kagan said at her confirmation hearing that she regarded capital punishment as "settled law going forward."  Her actions since they tell me that she is, as I always thought, a person of her word.  It's also very encouraging to see that Justice Kagan draws a sharp line between her personal policy views (which I suspect disapprove the death penalty) and her role as a jurist to follow the law.

Accordingly, I think the current lineup against abolition is 6-3.  Of course it's possible that some of the older Justices (Ginsburg, Kennedy and Breyer) may leave the Court in the next two or three years.  It is, not to put too fine a point on it, inconceivable that President Trump would name a justice opposed to the Court's current view as set forth in Glossip.


In you paragraph after the quote, I think you mean to refer to Breyer rather than Kennedy in your second parenthesis. Other than that, this post strikes me as spot-on.

Good catch! I have incorporated your correction in the text. Thanks for paying better attention than I did.

Today also gave us a per curiam reversal of the Ninth Circuit--what makes the case even more remarkable--the author of the Ninth Circuit opinion, Kim McLane Wardlaw, has been down this road now at least four times. Of the three previous per curiam reversals she has eaten, the most egregious one is McDaniel v. Brown. That case, to go down memory lane, involved, curiously, a Ninth Circuit decision finding insufficiency of the evidence in a criminal case, but also a retrial order. Obviously, the two are mutually exclusive.

Of course, neither the ABA write-up of the case, nor SCOTUSBlog's writeup mention this history.

In case anyone wants to walk down memory lane re: McDaniel v. Brown:


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