Dignity Kennedy, Burkean Kennedy, and Libertarian Kennedy

why justice Kennedy may yet vote to ban the death penalty despite his vote in glossip

The Anthony Kennedy who wrote Obergefell v. Hodges wants to ban the death penalty.

That's an audacious thing to say on the daythat Justice Kennedy castthe decisive fifthvote in Glossip v. Gross, the lethal injectiondecision which may restart executions in Oklahoma. As Justice Sotomayor's dissent cogently explains, theGlossipdecision (which upheld a novel lethal injection procedure) cannot be squared with existing Eighth Amendment doctrine. More importantly, itall but ensures that some Oklahoma prisoner, like Richard Glossip or his co-plaintiffs, will (as Justice Sotomayor put it) suffer an "execution that is intolerably painful -- even to the point of being the chemical equivalent of burning alive." I am deeply saddened and righteously angry bothat the particular result in this case andmore broadly thatJustice Kennedy's Court routinely allows American states to kill its own citizens, in violation of international norms and the Sixth and Eighth Amendments of the United States Constitution.

Justice Breyer's dissent in Glossip, joined by Justice Ginsburg makes a compelling case that the death penaltyitself violates the Eighth Amendment and calls upon the Court to confront that "basic question." Many will write about the specific import of Justice Breyer's epic, powerful dissent. (And I should note that Justice Sotomayor's dissent, joined by Justices Kagan, Breyer and Ginsburg, pointedly declines to endorse the premise that the death penalty is constitutionally permissible and calls the current tumult over lethal injection "just the latest iteration of the States' centuries-long search for neat and non-disfiguring homicidal methods.") But I want to use this piece to suggest that Justice Kennedy, one of the few Justices who wrotenary a wordin Glossip, may yet write or join a majority opinion vindicating Justice Breyer's Glossipdissent.

I'm not the first tosuggest that Justice Kennedy's commitment to advancing the equal dignity of all persons conflicts withpermittingthe death penalty (as currently practiced) as a matter of constitutional law. Constitutional scholar Jamal Greene did so as early as 2006. And this was before Justice Kennedy, in Hall v. Florida, declared that "[t]he Eighth Amendment's protection of dignity reflects the Nation we have been, the Nation we are, andthe Nation we aspire to be" in the course of holding (for thesecond time) that executing a person with Intellectual Disability "violates his or her inherent dignity as a human being." And it was before Justice Kennedy wrote, in Kennedy v. Louisiana(which banned the death penalty for child rape): "When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." When directly presented with a straightforward, substantivequestion of whether to extend or narrow the death penalty, Justice Kennedy typically opts for the latter. It is not for nothing, then, that Justice Scalia's concurrence in Glossipdeems the Kennedy Court's substantiveEighth Amendmentcase law an "abolitionist-inspired jurisprudence."

So why didn't Justice Kennedy adopt Justice Breyer's position in Glossip? The Anthony Kennedy who wrote Obergefell—who wants to see the death penalty abolished—has other strong ideological/jurisprudential commitments. Dignity Kennedy is just one part of a three-legged stool. Anthony Kennedy is committed not just to a strong conception of human dignity but also to Burkean Conservatism and Libertarianism. Here's how I think about Justice Kennedy's death penalty jurisprudence:

The second two legs of the stool of Justice Kennedy’s death penalty jurisprudence (Burkeanism and Libertarianism) produce a strong commitment to Federalism, and Justice Kennedy's commitments to Burkeanism and Federalism together explain his unfortunate vote in Glossip.

First, the majority in Glossip (including Kennedy)believed (perhaps wrongly) that granting theprisoners relief in Glossip would undermine Oklahoma's ability to have a death penalty at all, and Burkean Kennedy is not yet ready to allow Dignity Kennedy to ban the death penalty altogether.

Second, ruling for theprisoners in Glossipundoubtedly wouldhave further involvedthe federal judiciaryin regulating howstategovernments carry out their criminal sentences. Justice Alito's opinion for the Court reasons that "challenges to lethal injection protocols" should be treated skeptically because they "test the boundaries of the authority and competency of the federal courts." I believe that the states have proven that they require the federal judiciary to further regulate how they carry out their criminal sentences, as Justice Kennedy's own concurrence in Davis v. Ayalashows. But in this particularcase, intervening in the states' affairswas toohard a pill for Kennedy to swallow, in light of his strong commitment to Federalism. So, even if Justice Kennedy were ready to ban (oreven furtherlimit)the death penalty, he would not want to do it in this posture.

The upshot of Justice Kennedy's commitments to Burkeanism and Federalismis that the Supreme Court of the United States has endorsed a method of execution that is the chemical equivalent of being burnedat the stake or boiled in oil.

Kennedy'scommitments to Burkeanism and Federalism likewise explain numerous othercondemnable Kennedy votes, and especiallythe steady stream ofrulings againstdeath-row prisoners who bring cases under certain provisions of the federalism-promoting (and dignity-denying) Antiterrorism and Effective Death Penalty Act of 1996 (e.g., Harrington v. Richter).

So why do I remain hopeful that Justice Kennedy may some day soon join Justice Breyer in finding that the death penalty itself is likely unconstitutional? Mainly because Justice Alito's majority opinion in Glossip, which Kennedy joined, is quite narrow. Setting aside the extraordinarily grave context,Justice Alito's opinionreads in many wayslike a pedestrian, record-specificCourt of Appeals opinion. For our purposes here, there's not much discussion of the "basic question." To be sure, Justice Alito doesrecite that"we have time and again reaffirmed that capital punishment is not per se unconstitutional" and the like.But that's about it.

And Justice Kennedy declined to join the concurring opinions of Justices Scalia and Thomas, which attempt to provide a substantive constitutional defense of capital punishment and attempt torefute Justice Breyer's arguments against it. In light of Justice Breyer's strong dissent, why wouldn't Alito include the material inthe Scalia and Thomasdissents in the opinion for the Court? Perhaps one of the five-member Glossip majority has qualms?

How Justice Kennedy decides (or should decide)when his commitments to Burkeanismand Federalism trump his commitment to Equal Dignity (and vice versa) is beyond the scope of this piece. Suffice itto say thattheAnthony Kennedy on display in Obergefell and in cases like Hall and Kennedy provides some hope that, in the not-too-distantfuture, Dignity Kennedy mayinsist onbanning the death penalty. And if enough individual states abolish the death penalty, Burkean Kennedy may not object too loudly.

Regardless, practitioners must start seriously pressingthe "basic question" of whether the death penalty is per se unconstitutional in the lower courts and must seriously consider presenting the Court with that basic question. Justice Breyer's dissent in Glossip has shifted the constitutional "Overton window." And even if Justice Kennedy never evolves, we may have changes in the membership of the Court that make it more respectful of basic human rights in the criminal justice arena.

The views expressed in this article are solely those of the author and do not necessarily represent the views of the Federal Public Defenders Office or any of the author's clients.