At Civitas Outlook, Josh Blackman: The Roberts Court Needs To Reboot The Machinery Of Death. From the introduction:
In the span of one year, the Burger Court created a constitutional contradiction. Furman v. Georgia (1972) proclaimed that the Eighth Amendment prohibits states from terminating the life of murderers. One year later, Roe v. Wade (1973) ruled that the Fourteenth Amendment prohibits states from protecting the life of the unborn. Both rulings represented the heights of judicial hubris. The Justices, and not the elected branches, would decide who could live and who could die. Neither ruling was even remotely plausible as an originalist matter. Both rulings led to chaos and uncertainty in the law.
While the Supreme Court would not revisit Roe for nearly two decades, the Court returned to the death penalty four years later. In the face of a popular backlash, the Court in Gregg v. Georgia (1976) allowed the states to resume executions. But this decision still allowed the judiciary to superintend capital punishment based on “evolving standards of decency.” This sort of living constitutionalism is an anathema to the notion of a written Constitution. But worse still, this standard gives liberal elites who define “decency” the power to define our justice system. This regrettable standard persists to the present. Just last week, the Supreme Court declined to resolve a capital case where mental health professionals insisted that a cold-blooded killer could not be executed because one of his five IQ scores may have been too low. The Court owes the victims of brutal murders and the Constitution far better. The machinery of death needs a reboot.
And from later on:
Consider Hamm v. Smith, the Supreme Court’s latest misadventure in this field. In 1997, Joseph Clifton Smith violently murdered a man with a power saw. There is no question that Smith committed the offense three decades ago. There is also no doubt that his trial followed all the rules of procedural fairness. Smith’s only defense is that under Atkins v. Virginia (2002), he is “mentally retarded,” and therefore cannot be executed. Even though he could read at an eleventh-grade level and his highest IQ score was 78, the court of appeals ruled that his lowest score of 72 was close enough to an arbitrary floor of 70. Alabama appealed to the Supreme Court seeking clarity on the appropriate IQ standard for executions.
Did the Justices agree or disagree with this ruling? We don’t know. Five months after oral argument, a 5-4 majority simply dismissed the petition “as improvidently granted” and said nothing. Justice Alito dissented, joined by Justice Thomas in whole, and Chief Justice Roberts and Justice Gorsuch in part. Alito charged that the majority “shies away from its obligation to provide workable rules for capital cases.” Here, Alito was looking directly at Justices Kavanaugh and Barrett, who provided the fourth and fifth votes to dump the case. Why did the two Trump appointees refuse to decide the case? My theory is that the facts here were unusual, as Smith took five different IQ tests with a wide range of scores. The Justices may not have wanted to set a rule based on such messy facts, so they just excused this savage murderer from death row.
Whatever the reason, this dismissal illustrates the flaws of Atkins and Trop. The judiciary should not be in the business of superintending capital punishment based on inconsistent tests developed by professional bodies that oppose all capital punishment.
Via Volokh Conspiracy, where Professor Blackman adds:
The entire Eighth Amendment jurisprudence has been an abject failure at every level. In my mind, the most perverse aspect of the abolition movement is that so much effort is aimed at helping the most gruesome murderers, even as defendants who committed far less serious offenses with a greater chance of success are severely underrepresented. States are free to abolish capital punishment, and the federal courts should exit this thicket.
Posted at 6:07 AM