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Ian West/PA Images via GettyA hotel worker called 911 to request urgent assistance before musician Liam Payne fell to his death from the third floor of the building in Buenos Aires on Wednesday.The 31-year-old British singer and former member of the boy band One Direction died after he “jumped from the balcony of his room,” Buenos Aires Security Ministry Communications Director Pablo Policicchio told the Associated Press. He added that police had been called to the Casa Sur Hotel in the Argentine capital after receiving an emergency call shortly after 5 p.m. local time about an “aggressive man who could be under the influence of drugs or alcohol.”A transcript of a 911 call published by the BBC shows a worker at the hotel telling the operator that they have “a guest who is high on drugs and who is trashing the room” and the staff therefore “need someone to come.”Read more at The Daily Beast.

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In 2009, someone going by the pseudonym Satoshi Nakamoto created bitcoin — the world’s first cryptocurrency. | Getty Images/Janos Kummer Despite what a new HBO documentary suggests, the identity of one of the richest people in the world is still unknown. By now, the story is so famous that it’s taken on the aura of a creation myth: one day in early 2009, Satoshi Nakamoto, the pseudonym used by the inventor of bitcoin, released the world’s first cryptocurrency. Two years later, Nakamoto vanished seemingly forever. Since then, countless theories on who the real Nakamoto is have been advanced, with no single candidate coming out on top. Whether Nakamoto’s anonymity is merely an entertaining mystery, a necessity for privacy, or a worrisome concern depends on who you ask. For filmmaker Cullen Hoback, whose documentary Money Electric: The Bitcoin Mystery premiered on HBO last week, finding the mysterious bitcoin founder is a matter of public interest — and Hoback believes he has unmasked him as a 39-year-old Canadian bitcoin developer named Peter Todd. Since the film’s release, Todd and other prominent voices in the community have dismissed Hoback’s arguments. According to them, Nakamoto remains an enigma. Many bitcoin enthusiasts prefer it that way. But it’s obvious why the search has endured over the past 15 years. Bitcoin is far and away the most popular digital currency in the world, with a market cap of about $1.3 trillion at the time of writing. (For comparison, the second biggest, ethereum, has a market cap of $312 million.) For those who believe a decentralized alternative to government-issued currencies — like the US dollar — is crucial to protect individual privacy and freedom, Nakamoto is akin to Prometheus bringing the gift of fire from the gods. Then there’s this mind-boggling possibility: if reports that Nakamoto might hold as much as 1.1 million bitcoins are true, they could be sitting on a fortune of over $70 billion, making them one of the 25 wealthiest individuals on Earth, according to Forbes’ real-time billionaires ranking. But Nakamoto doesn’t seem to have spent any of it — at least, not anything in their confirmed bitcoin wallets.  What does it mean for the rest of us that such an enormous treasure chest remains in the hands of an unknown entity, whose true aims and intentions can’t be determined? Who benefits if Nakamoto remains in the shadows — and who benefits if they’re revealed? What we know about the bitcoin creator The internet user Satoshi Nakamoto first appeared in 2008, when they published a paper to a cryptographic technology mailing list laying out a system that they had dubbed bitcoin. It would function as a form of digital cash that people could use to send money back and forth without involving any kind of bank. In other words, one could reliably make and receive payments completely anonymously. There was a clear ideological aim: in Nakamoto’s view, the ability to keep your financial record out of the surveillance and reach of powerful authorities, whether it’s large private banks or the government, is an important personal freedom. Such institutions, after all, aren’t infallible. In one illuminating forum post in 2009, Nakamoto wrote that “the root problem with conventional currency” was “trust.” “Banks must be trusted to hold our money and transfer it electronically, but they lend it out in waves of credit bubbles with barely a fraction in reserve,” they continued. “We have to trust them with our privacy, trust them not to let identity thieves drain our accounts.” When Nakamoto created the very first block that would become the bitcoin blockchain, they included a message referencing a headline in the British newspaper The Times that day: “Chancellor on brink of second bailout for banks.” The top suspects, and why Nakamoto’s identity is still up for debate Nakamoto’s writings indicate that they’re most likely someone with a strong understanding of economics, computer science, and modern cryptography — which involves methods and technologies for keeping information secure, like encrypting a message that can only be unlocked with a special key. Unsurprisingly, the commonly advanced candidates for who Nakamoto could be are self-identified “cypherpunks” — a community of mainly computer scientists who advocate for using cryptography to protect digital privacy. According to Hoback, director of Money Electric, Peter Todd fits the bill. Todd is a libertarian pro-privacy advocate who, among other things, is a huge proponent of using cash because it’s harder for governments and banks to track your spending. As a teenager, he was already communicating with older, respected cypherpunks and seemed unusually knowledgeable about bitcoin despite his youth. Todd would have been 23 years old when the bitcoin white paper was published. Hoback builds his case primarily on the fact that Todd joined the message board Bitcointalk.org in 2010 right before Nakamoto stopped posting. But the crux of Hoback’s argument hinges on an interaction between Todd and Nakamoto on Bitcointalk. Nakamoto had posted something technical about how bitcoin transactions work; about an hour and a half later, Todd replied with a small disagreement. Hoback contends that the reply actually reads more like someone finishing their previous thought — that Todd had signed into the wrong account to make an addendum to the original Nakamoto post. In the film, he also points to a chat log in which Todd calls himself a foremost authority on sacrificing bitcoin, which Hoback connects to the fact that Nakamoto hasn’t done anything with their coins in all these years (at least, that we know of). It’s an intriguing interpretation, but not exactly a smoking gun.  Hoback, both in interviews and within Money Electric, portrays Todd as someone who enjoys playing games over whether he could be the bitcoin founder, laughing on camera as the filmmaker explains why he believes Todd is Nakamoto — at one point saying with a smirking grin, “Well, yeah. I’m Satoshi Nakamoto.” On X, though, Todd has firmly denied that he’s Nakamoto. In an email to Vox, Hoback wrote that Todd stopped speaking to him after filming this scene. The other main person of interest in Money Electric is Adam Back, a British cypherpunk in his 50s whose work toward a functional digital currency was cited in Nakamoto’s original bitcoin paper. One reason Hoback finds Back suspicious is that he became more active in the bitcoin world — specifically concerned with how to make transactions completely anonymous — right after speculation emerged that Nakamoto controlled over 1 million bitcoins, more than previously thought. Unlike Todd, Back has stridently distanced himself from even joking suggestions that he could be Nakamoto. Other commonly floated contenders include prominent cypherpunk figures such as Hal Finney, who died in 2014 and was the recipient of the first test bitcoin transaction that Nakamoto sent, and Nick Szabo, who came up with the concept of “smart contracts,” a crucial function of many blockchains today. One wild suggestion claims that the Japanese etymology behind Satoshi Nakamoto can roughly translate to “central intelligence,” a sign that bitcoin was in fact invented by the CIA as some sort of trap. Another conspiracy theory — practically a meme at this point — posits that Tesla and SpaceX billionaire Elon Musk is the real Nakamoto. (He denies it.) It isn’t clear whether Nakamoto is still alive, or even whether they’re one person rather than a group of people working together. Early this year, an unknown person sent 26.9 bitcoins (worth approximately $1.8 million today) to Nakamoto’s dormant wallet, firing up fresh excitement over where Nakamoto is and what they might be doing.  How do you track down a mystery like Nakamoto? Should you even try? Since 2011, Nakamoto hasn’t emailed or posted anywhere under their username. They also haven’t used the crypto wallets associated with that name. But even if someone is determined to remain in the shadows, and has left no obvious evidence giving them away, there are bound to be some breadcrumbs. Much of the theorizing around Nakamoto depends on analyzing their style of coding and writing. Hoback, at one point in the film, nods to the fact that Nakamoto and Todd both used slurs that could indicate immaturity. Another commonly noted marker is that Nakamoto often used British English spelling (such as “favour”), and Todd is Canadian. But other linguistic comparisons of commonly used words and phrases have been made that inconclusively point to other candidates. On the forum, Nakamoto often uses a double space at the start of a sentence, while Todd does not. Both Back and Todd pepper in dashes to break up clauses in a single sentence — Nakamoto doesn’t. Could the stylistic differences be a cunning, intentional misdirection? No one knows. Ultimately, none of these tics add up to definitive proof. Many in the bitcoin world conjecture that Nakamoto disappeared because WikiLeaks — the site where Julian Assange published many leaked documents — appeared poised to start accepting donations in bitcoin, which might lead to more attention on Nakamoto. In one of their last known communications, Nakamoto wrote to bitcoin developer Gavin Andresen, “I wish you wouldn’t keep talking about me as a mysterious shadowy figure, the press just turns that into a pirate currency angle.” In the last known email, sent in April 2011, Nakamoto claimed they were no longer involved with bitcoin. It’s clear that Nakamoto never intend to out themselves — and, indeed, they seem to argue that there’s no point. Bitcoin is now out of their hands. So how much does their identity matter? Hoback argues that it matters a lot due to how important bitcoin has become. “Bitcoin is already being baked into our financial system,” he told Vox, referring to its acceptance as legal tender in some countries and the fact that it could now be included in 401(k)s. Nakamoto potentially controls a significant portion of the total limited supply of bitcoin; if they one day decided to come forward and start moving (and spending) the coins in their possession, such an enormous sell-off could be destabilizing for the cryptocurrency. If they spend their riches, there’s also arguably a public interest in knowing where so much money is going, and whether it has any political impact. Acknowledging the possibility that Nakamoto could be multiple people, Hoback continued, “This group is making themselves super rich while saying no one should look into Satoshi. Isn’t that a little suspicious?” If you believe that holding the powerful to account is important, then Nakamoto’s insistence on anonymity stands against the transparency that such accountability requires. It’s no secret that many of the world’s richest people have historically cleaved to remaining as private as possible, using elaborate financial structures and tax havens to avoid scrutiny of what their money is funding. Then again, there’s no proof that Nakamoto has spent any of their fortune. Their known bitcoin hoard is a rough value of net worth, not yet used for anything — and we know this because all bitcoin transactions are part of a public ledger. If they started cashing in their bitcoin stockpile, that could make it easier for people to find their real-life identity, which is an incentive for Nakamoto to leave that stash untouched. (It is curious, though, that in late September about $13 million worth of bitcoin mined in the very early days of the cryptocurrency suddenly moved.) Perhaps there’s a better question than whether it matters who Nakamoto is: How important is it that the inventor of bitcoin remains a mystery? From the perspective of the cypherpunks, it’s crucial. There’s a financial motivation — the reveal of Nakamoto’s real identity could tank the price of bitcoin. But Nakamoto’s lasting anonymity is also an ideological resistance to government authority in an increasingly surveilled digital world. Many key figures in the bitcoin community unequivocally express a desire for Nakamoto’s identity to stay a secret – according to Hoback, Todd seemed displeased that people had found Nakamoto’s million-plus bitcoin stash, and told him to leave Nakamoto alone. There’s also the potential danger someone could be in if others think they’re Nakamoto. In a comment to the New Yorker, Todd told the publication that Hoback had put his safety at risk by accusing him of being a multi-billionaire, and that he would soon be doing “some unplanned travel.” (He has not responded to an email from Vox.) Todd isn’t wrong that prior attempts to unmask Nakamoto have disturbed people’s personal lives — take the case of Dorian Satoshi Nakamoto, a former engineer and programmer in California who was the subject of a Newsweek report claiming he was the bitcoin God. Dorian Nakamoto has categorically denied even knowing what cryptocurrencies are, and has said the accusation and public scrutiny caused a “great deal of confusion and stress” for him and his family. In response, Hoback told Vox that other people long suspected of being Nakamoto — like Nick Szabo and Adam Back — are fine. Toward the end of the Money Electric, Todd says that the hunt for bitcoin’s Nakamoto is yet another example of “journalists really missing the point.” The point, he elaborates, is “to make bitcoin the global currency.” But if that came to fruition — and it isn’t close to becoming reality yet — then ironically, Hoback’s argument for hunting down the bitcoin mastermind would only become more compelling to both the general public and almost certainly to governments around the world. The surest way to protect Nakamoto’s anonymity seems to be for bitcoin to not become a widespread alternative threatening government-issued currencies — to not become too important.

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Phillip Faraone/Getty ImagesIt appears Donald Trump is once again attempting to silence Stormy Daniels, despite his recent convictions in that category.MSNBC’s Rachel Maddow reports that Trump’s lawyers tried to “get another hush money deal” with the adult film star, to keep her from making any “public or private statements related to any alleged past interactions” with the former president. In exchange for her written agreement, Trump’s team reportedly offered to adjust the debt she owes Trump for the unsuccessful defamation case her lawyer brought against him in 2018.Daniels still needs to pay “hundreds of thousands of dollars” in legal fees, Maddow explained, and in hammering out the exact amount, Trump’s lawyers allegedly offered to “pretend” she owed their client “less than they actually believed” she did. Whereas they first estimated Daniels’ debt at $650,000, Maddow reported, they said they would settle her tab for $620,000, if she promised not to make any “defamatory or disparaging statements about him, his business, and/or any affiliates, or his suitability as a candidate for president.” They then adjusted the fee, asking $635,000 if she refused to sign a non-disclosure agreement. Daniels reportedly turned them down, paying $627,500 and declining to sign the NDA.Read more at The Daily Beast.

Donald Trump’s recent comments on abortion have been evasive and contradictory. He takes credit for appointing the Supreme Court justices who overturned Roe v. Wade, but says his administration would be “great for women and their reproductive rights.” He first refused to commit to vetoing a national abortion ban, but later said he would. He criticized Florida’s six-week ban as too early, but only a day later said that he would vote against a ballot measure there that would expand abortion rights.He has, however, been consistent on one position: his opposition to what he calls abortion “after birth,” something he claims his Democratic rivals support. For example, at the September presidential debate, he declared that Vice President Kamala Harris and her running mate, Tim Walz, support the “execution” of babies after they are born. Trump brought up Democratic support for “execution of a baby after birth” again in an X post later that month.As a debate moderator noted, killing a baby after birth is illegal in all states. What Trump appears to have in mind, and to be disparaging, is perinatal palliative care (PPC)—a crucial medical service aimed at improving quality of life for women and their babies after a severe fetal diagnosis or extreme prematurity. Established ethics guidelines govern who is eligible based on the specifics of a diagnosis, a baby’s chance for survival, and what complications the baby is likely to suffer. PPC can begin at diagnosis during pregnancy, and include standard prenatal care in addition to psychological, emotional, and mental-health support for the parents. If the baby is born alive, the care continues until the infant’s death.The thing to understand about perinatal palliative care is that no health-care provider or parent ends the baby’s life before or after birth. It’s not an execution, regardless of Trump’s claims. Parents who choose perinatal palliative care are choosing to forgo life-extending interventions, which can inflict or extend their child’s suffering, seeking instead to maximize quality of life for their child when survival is impossible or unlikely.[Emma Camp: Yes, third-trimester abortions are happening in America]The bitter irony of Trump’s attacks is that anti-abortion advocates have long pushed PPC as the alternative to abortion for such pregnancies. For instance, Americans United for Life created a policy guide and model legislation called the Perinatal Hospice Information Act in 2018. Following that model legislation, numerous states passed laws requiring abortion seekers to be notified of options for perinatal palliative care before they could receive an abortion. These laws essentially advertised PPC as protecting women because, proponents argued, PPC is less psychologically damaging than abortion. An anti-abortion advocate told a local newspaper in Missouri that “the grieving process is actually better for the woman by actually going ahead and giving birth,” rather than having an abortion. (Research suggests that the psychological outcomes and feelings of regret are the same.)With PPC available as an option, some anti-abortion leaders shamed women for choosing abortion. For instance, Pope Francis blamed a “culture of rejection” that labels children as “incompatible with life” when they should really be “welcomed, loved, and nurtured.” Perinatal palliative care became the answer for what “good” mothers do when faced with such a diagnosis: not “forsake the child but allow the little one to feel human warmth and love,” and appreciate the “gift of time” with their baby first during pregnancy and later when he or she dies.That sentiment was on display late last year when Kate Cox sued Texas, seeking a declaration that the state abortion ban’s life-of-the-mother exception applied to her. Cox’s baby had a fatal condition known as Trisomy 18; continuing the pregnancy could have destroyed her chances at having another living child, because of her health risks and prior Cesarean sections. But the Texas Supreme Court rejected her claim, and Cox left the state to obtain abortion care. Texas Right to Life, a prominent anti-abortion group, disparaged Cox’s lawsuit, saying that her child was “uniquely precious” and that the “compassionate approach to these heartbreaking diagnoses is perinatal palliative care, which honors, rather than ends, the child’s life.”In the post-Dobbs era, most states that had once used PPC as a tool to dissuade women from abortion don’t need to do so anymore; those states have banned abortion. Most states with abortion bans lack an exception for fetal anomalies, and when such an exception exists, it is only for a tiny subset of diagnoses. Thus, people in these states are now being forced to continue their pregnancies, enduring the risks and burdens of pregnancy only to watch their child die.This means that the need for perinatal palliative care is growing dramatically. A recent study found a 13 percent rise in infant mortality in Texas in 2022, after its six-week abortion ban went into effect in late 2021. (The rest of the country saw a 2 percent increase during that same period.) The biggest jump was in infant deaths due to congenital abnormalities, which rose by nearly a quarter. But many of the states that have restricted abortion have done little or nothing to expand access to PPC for those desiring it. And now that state abortion bans have eliminated the need to pressure families to not choose abortion, the anti-abortion movement may be rethinking its support for palliative care.[Read: Abortion isn’t about feminism]Trump, for his part, portrays perinatal palliative care as something callous and murderous. As he put it at a 2019 rally, “The baby is born and you wrap the baby beautifully and you talk to the mother about the possible execution of the baby.” At least according to Trump, parents who choose perinatal palliative care are killing their child, acting just as reprehensibly, in his view, as someone who chooses an abortion.Trump’s comments make clear that in the post-Dobbs world, there is no right answer for pregnant people facing a devastating fetal anomaly. A mother, apparently, should not only put her body on the line to grow and birth a child who will die in her arms, but force that child into aggressive interventions that may only cause and prolong the child’s suffering.The most empowering solution for families in such a situation is to provide them with accurate, neutral, and comprehensive counseling regarding their options—abortion, perinatal palliative care, and life-prolonging care. Each path can be justified by a parent’s compassion and love, and each has been chosen by good parents, doing the best they can for their families in an incredibly difficult situation. Donald Trump’s decision to use his platform to stigmatize and berate families in crisis shows how deeply he misunderstands the issue—and, more appalling, his failure to muster any compassion at all for the people living through it.

A prisoner’s hands inside a cell at Angola prison in Louisiana. | Giles Clarke/Getty Images For more than a year, Joseph Clifton Smith, a man who says he is intellectually disabled, has sat on death row, waiting to find out if the Supreme Court will greenlight his execution. Smith’s case, known as Hamm v. Smith, first arrived on the Court’s doorstep in August 2023. Since then, the justices have met more than two dozen times to decide what to do about the case, and each time they’ve put the decision off until a future meeting. No one outside of the Court can know for sure why the justices keep delaying, but if you follow the Court’s Eighth Amendment cases closely, it’s easy to see how the Hamm case could open up all kinds of internal rifts among the justices.  The Eighth Amendment, which has a vague ban on “cruel and unusual punishments,” is at the center of the Hamm case because, for decades, the Court has held this amendment forbids executions of intellectually disabled offenders (and offenders who commit a crime while they are juveniles). The idea is that both groups have diminished mental capacity, at least as compared to non-disabled adults, and thus bear less moral responsibility even for homicide crimes. That idea, however, has long been contested by the Court’s various ideological factions, and the Hamm case potentially reopens up all of the Court’s issues with the amendment at once. Indeed, in the worst-case scenario for criminal defendants, the justices could potentially overrule more than 60 years of precedents protecting against excessive punishments. This Supreme Court’s ongoing battles over the Eighth Amendment, briefly explained In two 2000s decisions, Atkins v. Virginia (2002) and Roper v. Simmons (2005), a coalition of Democratic and moderate Republican justices handed down decisions that barred youths and people who are intellectually disabled from being executed. Those majority decisions came down over bitter dissents from the Court’s right flank — the same right flank that has since gained a supermajority on the Supreme Court. At least some of the current Court’s Republicans seem eager to use their newfound supermajority to blow up those two cases (and pretty much everything the Court has said about the Eighth Amendment in the last six or seven decades). So it’s possible that the Court is fighting over what to do with the Hamm case because many of the justices want a wholesale revolution in Eighth Amendment law. Beginning in the mid-20th century, the Supreme Court maintained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as a particular method of punishment grew less common, the Court was increasingly likely to declare it cruel and unusual in violation of the Constitution. At least some members of the Court’s Republican majority, however, have suggested that this “evolving standards of decency” framework should be abandoned. In Bucklew v. Precythe (2019), the Court considered whether states could use execution methods that risked causing the dying inmate a great deal of pain. Justice Neil Gorsuch’s majority opinion, which held that potentially painful methods of execution are allowed, seems to exist in a completely different universe than the Court’s Eighth Amendment cases that look to evolving standards. While the Court’s earlier opinions ask whether a particular form of punishment has fallen out of favor today, Gorsuch asked whether a method of punishment was out of favor at the time of the founding. Though his opinion does list some methods of execution, such as “disemboweling” and “burning alive” that violate the Eighth Amendment, Gorsuch wrote that these methods are unconstitutional because “by the time of the founding, these methods had long fallen out of use and so had become ‘unusual.’” What makes Bucklew confusing, however, is that it didn’t explicitly overrule any of the previous decisions applying the evolving standards framework. So it’s unclear whether all five of the justices who joined that opinion share a desire to blow up more than a half-century of law, or if the justices who joined the Bucklew majority simply failed to rein in an overly ambitious opinion by Gorsuch, the Court’s most intellectually sloppy justice. In any event, Hamm opens up at least two major potential divides within the Court. Smith says he is intellectually disabled; the state of Alabama wants to execute him anyway. So the case perfectly tees up a challenge to Atkins if a majority of the justices want to go there. Meanwhile, Bucklew looms like a vulture over any cruel and unusual punishment case heard by the Court, as it suggests that the Republican justices may hit the reset button on all of its Eighth Amendment precedents at any time. So what is the specific legal issue in Hamm? The Court receives thousands of petitions every year asking it to hear a particular appeal, and it typically only grants several dozen of these petitions. The vast majority of these cases are nominally discussed at one of the justices’ regular conferences, then promptly denied. In recent years, the Court often discusses a case in two different conferences before agreeing to hear it — for this reason, I and other Supreme Court reporters often watch the list of cases the Court “relisted” for a second conference to identify cases the justices are more likely to hear. Occasionally, a case may be relisted for several conferences in a row. But this is rare, and typically is a sign either that the justices are negotiating over which issues they wish to decide in a particular case — or, more often, that a justice is dissenting from the Court’s decision not to hear a case and the “relists” are really just buying that justice time to draft an opinion. Hamm, however, has now been relisted in every single conference since the justices first discussed it on October 27, 2023. That is, to say the least, highly unusual. And it suggests that some particularly bitter internal negotiations are ongoing. If someone were dissenting from the Court’s decision to turn the case away, they likely would have released that dissent last July, because the justices typically try to resolve loose ends before they go on their summer vacation. Hamm involves a question that would inevitably arise once the Court decided Atkins — though it is unconstitutional to execute intellectually disabled offenders, there will always be some offenders who are on the borderline of what mental health professionals consider an intellectual disability. The specific question before the Court is what to do with these borderline cases. As a general rule, someone must have an IQ of 70 or below to be considered intellectually disabled. But IQ tests aren’t particularly precise — as the Supreme Court acknowledged in Moore v. Texas (2017), the IQ of someone who scores 74 on a particular IQ test falls within “a range of 69 to 79.” So, if courts read IQ tests as if they can identify an offender’s IQ score exactly, an intellectually disabled person could be executed due to something as arbitrary as a measurement error. Accordingly, the Court held in Hall v. Florida (2014) that a capital offender with an IQ score slightly above 70 must be given “the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime.” That is, such an offender must be allowed to present additional evidence beyond their IQ score to show that they are, in fact, intellectually disabled. Hamm is such a case. Smith took five different IQ tests, four of which showed him with an IQ in the low to mid-70s. Accordingly, two lower courts looked at additional evidence of his disability, determined he is, in fact, intellectually disabled, and ruled that he must receive a sentence other than death. In asking to execute Smith, in other words, Alabama is asking, among other things, that the Supreme Court overrule Moore and Hall, both cases that were handed down before former President Donald Trump remade the Court in the Federalist Society’s image. If the Court agrees, that alone would be a very significant legal development, both because it could allow intellectually disabled inmates to be executed due to a testing error, and because it would be a severe blow to stare decisis — the idea that judicial precedents shouldn’t be tossed out simply because the members of a court change. Of course, this Court’s Republican majority has shown little regard for stare decisis, at least in cases that divide along partisan lines. Since Justice Amy Coney Barrett’s confirmation gave the Republican Party a supermajority on the Supreme Court in late 2020, the Court has behaved as if it was going down a checklist, overruling liberal victories such as the cases establishing a constitutional right to abortion or the line of cases permitting affirmative action in limited circumstances, and replacing them with whatever outcome the GOP prefers. Yet, while this process has been painful for Democrats and toxic for the Court’s approval rating, it hasn’t been comprehensive — occasionally, one or more of the Republican justices signal that they will allow a previous liberal victory to remain in effect. Concurring in the Court’s decision to overrule Roe v. Wade, for example, Justice Brett Kavanaugh identified the Court’s past decisions protecting a right to contraception, as well as the right to marry a person of your own choosing, as cases he did not intend to overrule. All of which is a long way of saying that there’s no good way to know if Atkins or Roper is on the Court’s checklist of past liberal decisions to be overruled. These justices’ approaches to specific cases are often idiosyncratic, unpredictable, and unbound by preexisting law — just look at the Republican justices’ recent decision holding that Trump was allowed to commit many crimes while he was in office. The question of whether Atkins survives or falls will turn on whether there are five justices who want intellectually disabled people to be executed, and nothing else. But the fact Hamm has been relisted so many times suggests, at the very least, that there is a vocal faction within the Supreme Court that wants to use this case to aggressively reshape the law. What can be made of Bucklew? The other uncertainty looming over Hamm is the Bucklew decision, which didn’t so much overrule the Court’s last six decades of Eighth Amendment precedents as pretend that they didn’t exist. Bucklew involved a death row inmate who claimed that the Eighth Amendment would not allow him to be executed using Missouri’s lethal injection protocol — he said he had an unusual medical condition that would cause him to experience extraordinary pain before his death. So the question was whether the Constitution allows a state to execute an inmate in a manner that may amount to torture. Gorsuch’s opinion denying relief to this inmate reads like the Court’s “evolving standards of decency” framework never existed. This phrase appears nowhere in Gorsuch’s opinion, and the only citation to Trop v. Dulles (1958), the first Supreme Court case to use that phrase, appears in Justice Stephen Breyer’s dissent. Rather than follow longstanding law, Gorsuch asked whether capital offenders could be subjected to similar pain “at the time of the framing.” This is the Eighth Amendment rule long favored by the Court’s rightmost flank, including in Justice Antonin Scalia’s dissenting opinion in Atkins. Scalia’s Atkins dissent, moreover, doesn’t simply disagree with the Court’s past decisions. It lays out many examples of how the law would change — and how much easier it would be to subject even minor criminal offenders to outlandish punishments — under a framework that looks to how things worked in the 1790s. For starters, Scalia argues that only “severely or profoundly” intellectually disabled people enjoy some protection against execution (he argues these individuals were often “committed to civil confinement or made wards of the State” rather than being criminally punished). One of the sources Scalia cites suggests that only people with an IQ of 25 or below enjoy any constitutional protection. More significantly, Scalia also argues that the Eighth Amendment only forbids “always-and-everywhere ‘cruel’ punishments, such as the rack and the thumbscrew,” and that it does not prohibit the government from imposing excessive punishments for minor crimes. Under Scalia’s framework, if the death penalty can constitutionally be applied to murderers (and he believes it can) then it can also be applied to shoplifters. If a rapist can be sentenced to life in prison, so too can a jaywalker. Gorsuch’s Bucklew opinion elaborates on the sort of punishments that, under this originalist framework, are prohibited by the Eighth Amendment. He lists “dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive” as examples. So there is a faction within the Supreme Court that would drastically shrink Americans’ constitutional protections against cruel and unusual punishment. This faction would allow more people to be executed. They would apparently eliminate any concern that punishments must be proportionate to the crime. And the kinds of punishments they do offer up as examples of impermissible sanctions are the kinds of things normally depicted in torture scenes from movies set in the Middle Ages. Will five justices go there? It’s impossible to know. But that a total of five justices joined Gorsuch’s opinion in Bucklew suggests this faction could very well prevail — if and when the Court decides to take up Hamm.

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