The strange case that the Supreme Court keeps refusing to decide

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.