Another way that the death penalty is vulnerable is that executions have become overwhelmingly concentrated in a few jurisdictions. As Justice Ginsburg pointed out in a 2014 interview at Duke Law School, “Last year, I think 43 of the states of the United States had no executions, only seven did, and the executions that took place tended to be concentrated in certain counties in certain states.” This is important not only because it underscores the arbitrary nature of the death penalty as practiced in the United States, but because, all things being equal, the Supreme Court is more likely to rule a practice unconstitutional if it’s a regional outlier than if it is more widespread.
This isn’t to say that a Supreme Court with a Democratic median vote would have immediately ruled the death penalty unconstitutional. But it likely would have acted to further restrict its use, paving the way for a broader ruling.
Instead, the Court will remain where it is, and if Donald Trump gets another nomination it could become even more lenient on death penalty issues. Justice Anthony Kennedy is normally a conservative vote on the death penalty, but has sporadically voted with the Court’s liberal wing to rule the death penalty unconstitutional in certain circumstances: executions of minors, of people with severe mental limitations, and for sexual assault. If another justice like Gorsuch replaces Kennedy, states will have more leeway to apply the death penalty, not less. And if there is a 6- or 7-justice Republican majority, it will be a long time before there’s a majority open to holding the death penalty unconstitutional.
The 2016 presidential election could have been the death knell for the death penalty. Instead, it may well result in the death penalty being entrenched in certain states, and in less federal supervision of an arbitrary and unjust system. It’s yet another way that Donald Trump’s victory was a disaster for the country.