One telltale sign of capital punishment’s entrenchment in American politics can be seen in the unwillingness of death-penalty abolitionists to bring full-frontal challenges to the practice. Ever since 1976, when the Supreme Court held capital punishment constitutional, opponents have opted instead to chip away at capital punishment, focusing on such issues as racial bias, categories of defendants who may be executed, the use of the death penalty for offenses other than murder, and methods of execution. This strategy reflected a certain pessimism about whether a Supreme Court that had grown more conservative since the mid-70s would consider rethinking the constitutionality of capital punishment. While we can’t know for certain whether this pessimism was justified–my sense is that it was–we do know that attacking around the edges has produced some results that abolitionists like.
One of these results was a ban on executing mentally disabled capital defendants. Prior to the Court’s 2002 holding in Atkins v. Virginia, states had leeway to determine, on a case-by-case basis, whether defendants’ cognitive limitations so closely reflect diminished moral culpability as to warrant exclusion from execution. Atkins stripped sentencing juries and judges of this discretion, yet the Court opted not to establish a bright-line definition of mental disability. Instead, as it has done with insanity, it left states to define the concept. The result was substantial variation across states, with several adopting a strict IQ cutoff for determining eligibility to be executed.
It was inevitable that the Court would be called upon to determine how states would be allowed to apply Atkins, but whether the Court would resolve the question conclusively remained open. Tuesday’s ruling, in which the Court held that states could not rely exclusively on IQ scores to determine whether a capital defendant is mentally disabled, did not provide this conclusive resolution. The Court, recognizing that IQ test results have an associated margin of error, stated that when a defendant’s score falls within this margin of error, he or she must be allowed to present other evidence supporting a claim of mental disability. Anyone who hoped for the Court to impose a bright-line rule would have been disappointed, as the primary thrust of the ruling in Hall v. Florida was to deny states the right to impose their own bright-line rules.
Why did the Court decline the opportunity to bring some clarity to this area of the law, and to prevent lower courts from being inundated by Atkins claims? Consider what the majority coalition–no point being coy; we’re really talking about Justice Kennedy now–needed to do to remain a majority coalition:
- Avoid questioning the constitutionality of capital punishment itself.
- Avoid reversing the Atkins precedent.
- Avoid allowing the states to effectively reverse Atkins by establishing a definition of mental disability that virtually no defendant could meet.
- Avoid having to establish best practices for states with the death penalty.
Given these conflicting imperatives, the majority’s decision makes perfect sense. States still have some leeway to determine their own definitions of mental disability, but their application of these definitions must allow for some flexibility and must account for scientific understanding of cognitive disability. The Court doesn’t have to worry about imposing a definition that could be made obsolete by future developments in how the medical community understands mental disability. And the Court doesn’t have to confront the larger question about capital punishment’s compatibility with the Eighth Amendment’s stricture against “cruel and unusual punishment.” The community of death penalty opponents will take Hall as a meaningful victory, and it should.
One of the more common caricatures of Justice Clarence Thomas portrays him as Justice Antonin Scalia’s darker-hued doppelganger, with Scalia assumed to be the dominant partner. But progressives would be foolish to underestimate Thomas, whose envelope-pushing separate opinions have had a way of becoming the Court majority’s position eventually.
- His obscure concurring opinion in a 1997 case concerning a provision of the Brady Law set forth an individual-rights view of the Second Amendment that was scorned even by many conservatives at the time. Roughly a decade later, the Court had adopted his position.
- His preference for laissez-faire in campaign finance law, extending even to invalidating disclosure requirements on First Amendment grounds, has not yet become the Court’s position, but given the Roberts Court majority’s equation of money with speech and its narrow definition of corruption, it might once the right case comes before the Court.
- Most recently, his claim that the First Amendment’s Establishment Clause only prohibits the establishment of a national religion, and does not preclude state and local governments from supporting sectarian religious expression, was not the position adopted by the Roberts Court in Town of Greece v. Galloway, decided earlier this month. But Thomas’s position could eventually prevail, as Justice Anthony Kennedy’s majority opinion undercut the Court’s prior position in two ways.
First, it undermined the idea that government support for religious expression should not display favoritism toward any particular faith. Whether or not one believes that the First Amendment erects a “wall of separation” between church and state, one could identify a rough legal consensus that overt government favoritism toward a particular faith portends political divisiveness. However, the Court’s willingness to uphold the almost exclusively Christian prayers opening town meetings in Greece, New York–the only exceptions came immediately after the town was sued–implied that de facto discrimination on behalf of favored beliefs will be overlooked. Kennedy’s opinion did state that prayers that condemn other faiths or overtly proselytize would be out of bounds, but it’s unclear why the Court would choose to draw the line there. After all, the opinion also stated that allowing only nonsectarian prayers would require excessive government entanglement in religious practice, as courts would have to determine whether the prayer was explicitly sectarian or simply beseeching a generic supreme being.
Second, while Kennedy’s opinion used the “coercion” test for determining whether government involvement in religion violates the First Amendment, it defined coercion in a way that fails to recognize the backdrop against which government-sponsored prayer occurs. Kennedy distinguished the Greece town council prayers from benedictions at public school commencements by reference to the audience for the prayer (adults vs. groups including minors) and the degree to which that audience was captive. But in an important sense, the audience at Greece’s town council meetings has more to lose from religious dissent than does the audience at a commencement. Students who choose not to rise in prayer, or who leave the auditorium during a benediction, suffer a symbolic harm, in that they are made to feel like outsiders in their community. Religious dissenters attending town council meetings suffer this symbolic harm as well, but they also potentially suffer more tangible harms. Many people attend such meetings in order to petition their local government on such matters as zoning variances and expedited handling of license requests. Can a citizen feel confident that her request will be handled fairly once she has singled herself out as a dissenter? If not, and she values the item representing her reason for appearing at the meeting, will she not opt to make the appearance of participating in the prayer? Any definition of coercion that does not recognize this scenario as coercive is not a definition that will constrain government sponsorship of sectarian religion. As such, Thomas’s vision could be realized without the Court’s having to adopt it explicitly.
In short, Thomas has been a bellwether of where movement conservatives want constitutional law to go, and progressives who prefer to dismiss him would be better served by confronting his ideas head-on. The likelihood that the next president will have multiple vacancies to fill on the Court should provide sufficient motivation to launch such an effort.