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Courting The Death Penalty

An anti-death penalty protestor faces the Supreme Court building. (30 June 2014. Washington, DC) PHOTO: Fabrizio di Piazza

For the reasons stated in Justice Sotomayor's opinion, I dissent from the Court’s holding. But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.
576 U. S. ____ (2015)

In With Subtle Signals, Supreme Court Justices Request the Cases They Want to Hear, The New York Times Supreme Court Correspondent Adam Liptak explored instances of the Supreme Court broadcasting interest to hear a case on a particular issue. This Term there was no more dramatic example than Justice Stephen G. Breyer's dissent in Glossip v. Gross, a 5-to-4 decision written by Justice Samuel A. Alito upholding as constitutional Oklahoma's use of a "500-milligram dose of midazolam, a sedative, as the first drug in its three-drug protocol" for execution by lethal injection.


In a Dissent joined by Justice Ruth Bader Ginsburg, Justice Breyer wrote:
Justice Stephen G. Breyer
In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use. 
I shall describe each of these considerations, emphasiz­ing changes that have occurred during the past four dec­ades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to be­lieve that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishmen[t].” [Internal citations omitted.]

Justice Breyer writing "it is those changes, taken together with my own 20 years of experience on this Court" [emphasis added] is of note. He is not alone in his dissent in Glossip. And, he is not alone in the history of Supreme Court Justices changing their minds about the constitutionality of the death penalty. Both Justice John Paul Stevens, who retired in 2010, and Justice Harry A. Blackmun, who retired in 1994, came to see the death penalty as unconstitutional.

Orin Kerr, Fred C. Stevenson Research Professor of Law at George Washington University Law School and a blogger at The Volokh Conspiracy, provides interesting "pure speculation" on the question,  Why the late-career conversions at the Supreme Court on the death penalty?

Having briefly described how death penalty appeals work through the Court, Professor Kerr writes:
I suspect that the reason several Justices have late-career conversions against the death penalty is that decades of deciding death penalty cases becomes taxing and depressing. If you’re a Justice who favors the death penalty, it’s a grim but necessary part of the job. If anything, you’re probably frustrated that so much attention ends up being focused on such a small part of the criminal justice system. But if you’re a Justice who doubts or opposes the death penalty on a personal level, so much work on capital cases, year in and year out, never ending, constantly coming your way—it probably begins to wear on you. It never seems to stop. And there is no way to get away from it.
Clarifying, Professor Kerr writes:
I’m not saying that it’s a conscious decision. I’m saying that the stress and burden of the caseload — something that is hard to appreciate from the outside — has an influence on a Justice’s view over time. The idea that the death penalty is categorically unconstitutional becomes much more appealing in light of the Justice’s stress over that part of the docket.
In 2009, in a case called Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), the Court issued a less explicit invitation to address the broad constitutionality of the Voting Rights Act of 1965.

Chief Justice John G. Roberts, Jr., for the majority in that case, and in avoiding the constitutional question, explored the constitutional problems the Act faced and, after upholding the Act on statutory grounds, concluded the Opinion by writing:
More than 40 years ago, this Court concluded that “exceptional conditions” prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. 
By June of 2013, in Shelby County v. Holder, the Court in a 5-to-4 vote again authored by Chief Justice Roberts, and mirroring language he had used in NAMUDNO, overturned the "coverage formula" central to how the Voting Rights Act regulates state voting laws.

It would seem there is a difference between writing for a primed majority as Chief Justice Roberts did in NAMUDNO and writing for a vocal minority as Justice Breyer did in Glossip. It may take only four votes for the Court to hear a case. But, it takes five votes to make a majority Opinion.

The death penalty, for all its recent controversy, does not seem to be on the same trajectory as the Voting Rights Act in 2009.
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