Supreme Court Polarization and the Death Penalty

Breyer and Ginsburg’s dissent in Glossip doesn’t indicate that the current Supreme Court will rule the death penalty unconstitutional. But it does indicate that a future Supreme Court with a Democratic median vote might:

It is thus vanishingly unlikely that this court will hold the death penalty unconstitutional. The interesting question is what might happen should a justice nominated by a Democrat become the median vote of the court. In a recent paper, the University of Maryland legal scholar Mark Graber suggests that we are about to see a much more polarized Supreme Court that, rather than hewing towards centrist opinions, swings well to the left or right depending on who has the fifth vote.

The death penalty is one area where this may be most evident. Unless popular opinion shifts strongly in favor of the death penalty, Breyer’s opinion may very well reflect the default position of Democratic nominees, even the most conservative ones. If President Hillary Clinton can replace one of the Republican nominees on the court, we could ultimately see a decision declaring that the death penalty violates the Eight Amendment’s ban on cruel and unusual punishments.

But there’s a dark side to the polarized court from the perspective of death penalty opponents. If President Scott Walker or Marco Rubio replaces Justice Ginsburg and/or Breyer, states might aggressively expand the death penalty to encompass homicides committed by minors or the sexual assault of children — and these laws would likely be upheld.

Breyer’s dissent does not reflect a court that is going to rule the death penalty unconstitutional in the short term. But it does suggest that it is a medium-term possibility — and that the stakes of future presidential elections are about to get even higher, with control of the median vote of the Supreme Court accruing a greater policy impact than it’s ever had.

I’m not sure the #slatepitch arguing that Kennedy might be prepared to vote against the death penalty needs further rebuttal, but I would add one additional point.  Kennedy has made some thoughtful comments decrying mass incarceration.  And yet, given the chance to do something about it given an particularly extreme set of facts — someone given 25 to life for stealing golf clubs, a theft the prosecutors could have charged as a misdemeanor — he did nothing.  Which is also what he did when faced with someone given life without parole for possession of 672 grams of cocaine.  He did refuse to join Scalia and Thomas in holding that the Eight Amendment never forbids disproportionate sentences, but it some ways that makes it worse — at least the latter have a coherent reason for upholding grossly disproportionate sentences.  (He’s done something similar with respect to affirmative action, holding out the possibility that a program could be constitutional in theory while never finding one to be in practice.)   Does this sound like a justice willing to hold the death penalty categorically unconstitutional to you?