Supreme Court's Surprising Openness to Death Penalty Challenge

The justices seemed to move away from Justice Neil Gorsuch's earlier intentions to overhaul punishment regulations.

Following the Republican Party's establishment of a 6-3 supermajority in the Supreme Court at the end of 2020, the Court has frequently acted to dismantle key precedents misaligned with GOP ideals, often invalidating those in decisions split along party lines.

Recent Changes in SCOTUS Decisions

Many notable changes include revoking the constitutional right to abortion, curtailing affirmative action across most educational institutions, and expanding religious conservatives' scope to bypass state and federal statutes contrary to their beliefs. These actions diverged sharply from earlier Supreme Court rulings made by a more liberal set of justices.

A critical question surfaced during the Wednesday morning oral argument in Hamm v. Smith, a case involving the death penalty. The uncertainty revolved around whether the Republican justices' current agenda includes overturning previous rulings that restricted imposing cruel and unusual punishments. However, based on the session, it appears that the justices' plans concerning criminal penalties remain restrained, unlike more ambitious agendas on race or reproductive rights.

Examining Hamm v. Smith

The justices' decision-making is pivotal regarding Joseph Clifton Smith, who stands on death row in Alabama and contends that executing him violates the Constitution due to his intellectual disability. The skepticism some key justices had toward Alabama's stance might suggest a chance for Smith to succeed.

Every justice appeared to be on board with the ruling from Atkins v. Virginia (2002), which prohibits executing those with intellectual disabilities. Notably, not a single justice referenced Justice Gorsuch's majority opinion from Bucklew v. Precythe (2019), which seemed to challenge decades of Eighth Amendment precedents against cruel and unusual punishment.

While it's possible Smith may not prevail, any loss might be narrowly defined. Even justices who are staunchly in favor of the death penalty seemed to advocate for smaller steps in changing enforcement laws rather than demanding sweeping reforms.

The Core of Hamm v. Smith

Convicted of a 1997 robbery and murder, Smith was sentenced to death. However, two lower courts ruled he could not be put to death under the Atkins decision, citing his intellectual limitations.

Smith's assertion of a disability is not overtly strong nor an easily dismissed claim. Precedent requires courts to utilize the medical definition of intellectual disability to assess such claims, placing Smith close to the cusp.

IQ assessment is crucial in diagnosing an intellectual disability, generally considering a score of 70 or lower indicative. Yet, variances in test results are acknowledged, and even slightly higher scores may merit a diagnosis if the individual's adaptive challenges equate to those with lower IQs.

Smith's scores from five IQ tests were 75, 74, 72, 78, and 74. In Moore v. Texas (2017), the Court affirmed that courts must consider other intellectual disability evidence when IQ scores fall within the accepted range for cognitive deficits. On Wednesday, the Court's Democrats concurred that someone like Smith, with marginally above 70 IQ scores, should be allowed to present further evidence of adaptive behavior impairments aligning with an intellectual disability.

Potential Support from Republican Justices

Crucially, some Republicans on the bench also leaned towards this perspective. Justice Amy Coney Barrett noted that Alabama's own death penalty proceedings at times considered adaptive functioning even for defendants scoring beyond the 70 mark.

Justice Brett Kavanaugh challenged Alabama's lawyer Robert Overing by questioning the rationale behind ignoring relevant non-IQ evidence that might benefit the defense.

Chief Justice John Roberts was relatively silent during the session but critiqued Overing's seemingly outcome-biased reasoning, which allowed consideration of non-IQ evidence for defendants scoring mostly below 70 but not for those exceeding it.

Although agreement on adaptive functioning evidence from Roberts, Kavanaugh, and Barrett alongside Democrats doesn’t guarantee victory for Smith, it highlights the delicacy required in such determinations. As Smith's counsel, Seth Waxman, stressed, lower courts' factual judgments stand unless blatantly erroneous.

Supreme Court interventions should thus be cautious unless absolutely warranted by glaring errors. These interpretive stances suggest that justices are currently uninterested in upending Atkins altogether.

Understanding 'Evolving Standards of Decency'

The Court’s conservative members often challenged Atkins, attempting its erosion. For instance, Hall v. Florida (2014) allowed contested evidence of intellectual disabilities for those scoring above the established IQ threshold, despite dissent from four justices, including Justice Samuel Alito, pushing for state discretion in disability evaluations.

Alito's arguments for a circumspect interpretation of Atkins seemed to lack broader support. Even after postulating hypothetical cases with improbable IQ scores disparities, other justices were not swayed.

Notably, discussions did not revive Gorsuch's alternate Eighth Amendment approach from Bucklew, where cruel and unusual tests would reflect 1790s understanding rather than contemporary views.

Traditionally, starting mid-20th century, the prohibition against cruel and unusual punishment sought meaning from society's evolving decency benchmarks—stricter as practices grow rare.

During the ongoing Hamm debate, this originalist perspective didn't surface, with even Alito indicating the determination of 'evolving standards of decency' remains a primary duty.

Thus, while Smith’s future holds uncertainty, a restrained Court ruling is anticipated in this matter.

Looking Forward

For those seeking transformative changes similar to Bucklew's approach, the expectation remains unfulfilled. The current case suggests incrementalism over sweeping doctrinal shifts, reflecting a nuanced judicial stance.