Last week, Neil Gorsuch cast the deciding vote to allow an execution based on a conviction obtained from a trial in which the judge was literally sleeping with the prosecutor to proceed. The 2016 elections could have put the death penalty on the road to extinction, but instead might entrench it for a generation or more:
For all intents and purposes, no more than two justices at a time have held the view that the death penalty is categorically unconstitutional under the Eight and Fourteenth Amendments, which forbid cruel and unusual punishment and guarantee due process, respectively. (A 5-4 majority of the Court in 1972 did hold that the particular death penalty statutes in place at the time were unconstitutional, before upholding new statutory regimes in 1976.) The liberal lions William Brennan and Thurgood Marshall believed the death penalty was inherently unconstitutional. The liberal Republicans Harry Blackmun and John Paul Stevens ultimately reached the same conclusion, but only as they were about to leave the Court. In 2015, Justice Stephen Breyer wrote a dissent joined by Ruth Bader Ginsburg strongly implying that he agreed with the Brennan/Marshall position. But while Obama’s Supreme Court nominees Sonia Sotomayor and Elena Kagan have yet to join them, the context has changed.
What is particularly encouraging is that it’s Justice Breyer who has taken the lead. Breyer has been a fine justice, but he’s also in many respects a liberal from the Clinton era—in general he is much more wary about pushing the law in innovative directions that Warren Court–era liberals. Breyer concluding that the death penalty is categorically unconstitutional would reflect a real change in mainstream Democratic opinion, and would make it likely that any Democratic nominee will be open to arguments that the death penalty is unconstitutional.
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.
In conclusion, Both Sides Do It but the Democrats are worse.