By Isaac Saidel-Goley*
Justice Antonin Scalia’s passing on February 13 has fundamentally altered the ideological composition of the Supreme Court. The Court has for decades consistently leaned Right and suddenly finds itself leaning Left. This shift in the composition of the Court provides a rare opportunity for abolitionists to successfully challenge the constitutionality of capital punishment.
For decades, the death penalty has been a deeply divisive issue, both politically and constitutionally. Challenges to the death penalty have focused on innocence, racial bias, ineffective defense counsel (especially for indigent clients), and economic burdens on taxpayers. Over the years, the Court has steadily chipped away at the constitutionality of the death penalty. Although it has upheld the constitutionality of the death penalty as a punishment for murder, the Court has consistently split along ideological lines, with conservative Justices voting to uphold capital punishment and liberal Justices voting to strike it down.
The current ideological composition of the Court presents the best opportunity that abolitionists have had in decades—and the best opportunity they are likely to have in the foreseeable future—to end capital punishment. Justices Breyer and Ginsburg recently publicly requested briefing on the constitutionality of capital punishment, indicating their belief capital punishment is unconstitutional under the 8th and 14th Amendments. Justices Kagan and Sotomayor—the other two liberals on the Court—would almost certainly join Justices Breyer and Ginsburg in striking down the death penalty. Although three of the conservatives on the Court—Justices Roberts, Alito, and Thomas—are very likely to uphold the constitutionality of capital punishment, Justice Kennedy is more difficult to predict. Although he has not explicitly indicated whether he considers capital punishment unconstitutional, Justice Kennedy has voiced serious concern about the potentially unconstitutional tension between two fundamental 8th Amendment requirements: guided discretion and individualized sentencing. Considering Justice Kennedy’s 8th Amendment apprehension and his enduring jurisprudential focus on human dignity, there is a distinct possibility that he would side with the liberals and strike down capital punishment.
Abolitionists should take advantage of the favorable composition of the Court and file a broad challenge to the constitutionality of capital punishment as soon as possible. As always, selecting the appropriate forum will be essential, and abolitionists should be careful to challenge capital punishment in the 9th Circuit, which is predominantly comprised of Democratic-appointed judges who would likely find capital punishment unconstitutional. After the 9th Circuit ruling, abolitionists would face one of three potential scenarios at the Supreme Court, depending on when Justice Scalia’s vacancy is filled and by whom it is filled.
Scenario 1. If the case were to reach the Supreme Court before Justice Scalia’s vacancy is filled, then abolitionists would face a win-win scenario (assuming the 9th Circuit declares capital punishment unconstitutional): If Justice Kennedy were to side with the liberals, then the Court would strike down capital punishment; and if Justice Kennedy were to side with the conservatives, then the Court would evenly split, the 9th Circuit ruling would stand, and capital punishment would be abolished in the 9th Circuit.
Scenario 2. If the case were to reach the Supreme Court after the vacancy is filled by President Obama or the next Democratic President, then the Court would very likely strike down capital punishment, as there would most likely be five abolitionist votes between the four liberals currently on the Court, Justice Kennedy, and the new Democratic appointee.
Scenario 3. The worst-case scenario for abolitionists would be if the case were to reach the Court after the vacancy is filled by a Republican President. The outcome of this scenario would almost certainly depend on Justice Kennedy’s vote. This scenario would admittedly be a gamble, but as previously noted there is reason to believe Justice Kennedy would join the liberals and strike down capital punishment. Regardless of Justice Kennedy’s unpredictability, it would be preferable for abolitionists to gamble on this scenario than for them to postpone a challenge to capital punishment and face a Court where the most reliable abolitionist Justices—Breyer and Ginsburg—are two of the eldest Justices on the Court and where a Republican President would appoint their replacements.
In conclusion, regardless of the scenario that unfolds, now is the best opportunity in the foreseeable future for abolitionists to challenge the constitutionality of capital punishment. We must take advantage of this rare opportunity to end capital punishment.
* Isaac Saidel-Goley is a 2L at Harvard Law School.