Judicial Abolition from Below

If you're reading this piece, you've likely already read that some knowledgeable commentators (too many to cite here) believe that various signals the Supreme Court sent this term show that as many as five members of the Court are seriously entertaining banning the death penalty. Before proceeding further, let's briefly recap the key reasons why:

(1) Justice Breyer's dissenting opinion in Glossip v. Gross(joined by Justice Ginsburg), argues convincingly that the death penalty is unconstitutional and urges the Court to take up the question. (Why would master strategists like Breyer and Ginsburg not only announce their position but urge the Court to take up the question if they don't think they can get the votes?)

(2) Among the block of four moderate jurists on the Court, Justice Breyer may be furthest to the right. The two moderate jurists who didn't sign on to Justice Breyer's dissent (Justices Sotomayor and Kagan) should be -- according to their voting patterns -- at least as skeptical of the death penalty's constitutionality as he is. The upshot is that Justices Sotomayor and Kagan likely agree with Justice Breyer's Glossip dissent, even if they chose not to openly announce that position this term.

(3) The Glossip concurrences, written by Justices Scalia and Thomas, sound not just bitter but panicky. If the arguments pressed by Justice Breyer represent only marginal views (held only by Justice Ginsburg and himself), why all the fire and brimstone? Justices William Brennan and Thurgood Marshall penned epic screeds against the death penalty during their time on the Court, yet there was little alarm among the retentionist Justices.

(4) Justice Alito's majority opinion in Glossip studiously avoids responding directly to Justice Breyer's dissent. Given the length and power of Justice Breyer's dissent, this was unusual. It suggests that a member of the Glossip majority has qualms about the constitutionality of the death penalty.

(5) Justice Scalia took the extraordinary step of reading (or rather ranting about) his Glossip concurrence from the bench. This has happened only a few times in the entire history of the Court. It suggests that the stakes are very high indeed.

It's for these reasons (among others I may have overlooked) that some commentators believe the Court is making a move to ban the death penalty -- and soon.

But there would seem to be a problem, and that (seeming) problem goes by the name of Gregg v. Georgia, 428 U.S. 153 (1976). Many judges (and some Justices) read Gregg as having settled the constitutionality of the death penalty in the same way that Roe v. Wade, 410 U.S. 113 (1973), settled the right to choose abortion.

Of course, nothing prevents the High Court from overruling its own decisions. But the Supreme Court can't just come back next October and announce that the death penalty is now unconstitutional. The arguments catalogued in Justice Breyer's career-defining dissent must first be presented to the lower courts. Then, the lower courts have to rule on those arguments. And when they do, they will run smack into Gregg.

So, in the immediate future, are we doomed to a long string of lower-court opinions ducking Justice Breyer's arguments, hiding beneath Gregg? We shouldn't be -- at least not if the lower courts apply existing Eighth Amendment doctrine correctly. That's because Gregg's poison has an antidote: Trop v. Dulles, 356 U.S. 86 (1958).

In Trop, Earl Warren -- Chief Justice during the heady days of Brown v. Board of Education, 347 U.S. 483 (1954), Gideon v. Wainwright, 372 U.S. 335 (1963), and New York Times Co. v. Sullivan, 376 U.S. 254 (1964) -- sewed the seeds of the death penalty's destruction.

Chief Justice Warren's opinion in Trop held that, at least when it comes to the Eighth Amendment's protections against cruel and unusual punishment, ours is indeed a Living Constitution. Specifically, Trop famously held: "[T]he words of the [Eighth] Amendment are not precise, and ... theirscope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

And Trop is not just Eighth Amendment precedent; it is Eighth Amendment gospel. That the Eighth Amendment becomes more protective over time has been repeatedly reaffirmed (even in cases denying Eighth Amendment claims) in the six decades since Trop. And the Trop super-precedent has been the cornerstone of Justice Kennedy's Eighth Amendment jurisprudence; he has used Trop to justify departing from prior precedent (with nary a word about stare decisis), in decisions like Roper v. Simmons, 543 U.S. 551 (2005).

Thus, bad Eighth Amendment precedent comes with an expiration date. It isn't even really precedent at all. It's good for one generation only.

And the lower courts have to apply the Trop principle too. After all, Roperaffirmedthe Missouri Supreme Court's decision to ban the juvenile death penalty even though such a ban conflicted with the High Court's earlier decision in Stanford v. Kentucky, 492 U.S. 361 (1989).

So, the lower courts can't hide behind Gregg. They have to face Justice Breyer's arguments on the merits. This is -- or at least should be -- a "Lawrence moment." When the Supreme Court tossed out bans on same-sex sodomy in Lawrence v. Texas, 539 U.S. 558 (2003), the decision caused lower courts to treat claims that the Constitution requires states to license same-sex marriages with great seriousness. Justice Breyer's Glossip dissent should spark the same vigorous debate among lower-court judges. If it doesn't, it will mean that the lower courts are defying the biggest Eighth Amendment precedent of them all: Trop v. Dulles.

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.