A Growing Fracture in the Death Penalty


Under Chief Justice Roberts, the Supreme Court has revisited the issue of capital punishment on numerous occasions.  Just in terms of overall cases, the Court has ruled on 23 since the beginning of the 2005 Term (habeas cases where the Court granted cert and ruled on the merits simultaneously are excluded from this count).  These cases are highly contentious and often divide the Court along ideological lines.  Each of the Robert’s Courts first six first capital punishment cases with a full decision of the Court, beginning with Brown v. Sanders for instance, came down to a 5-4 vote.  As with many other areas of law, Justice Kennedy is the traditional swing vote in these cases and the decisive vote in 5-4 splits.  Of these first six cases Kennedy wrote three majority opinions, Thomas wrote two, and Scalia one.

In this post I examine some of the statistics based on the 23 capital punishment cases under the Roberts Court and then give a sense of what the most recent decisions may portend for the future.  Over 50% of these cases (14 of 23) ended in 5-4 decisions.  Only two of these rulings (Smith v. Spisak and Kansas v. Cheever) or 8.7% were based on unanimous decisions, fewer than the three per-curiams in this batch of cases.

For a discrete item such as the death penalty, there are actually a diverse set of particular issues brought up in these cases.  Just this Term the Court reviewed five death penalty cases that involved issues ranging from a judge’s bias to juror instructions and sentencing procedures.  This set of issues is obviously even more expansive when examining a broader time period.

The ideological friction in these cases is palpable.  12 of the 13 cases with 5-4 decisions broke down based on straight ideological lines with either the more conservative Justices (Thomas, Scalia, Roberts, and Alito or O’Connor) or the more liberal Justices (Breyer, Ginsburg, Sotomayor, and Kagan or Souter or Stevens) in dissent.  Three of these 5-4 decisions – Glossip v. Gross, Davis v. Ayala, and Hall v. Florida – were quite recent cases from the 2014 Term.

Onto the authoring Justices.  The figure below has a breakdown of the majority authoring Justices for the 20 signed opinions.


Justice Kennedy wrote twice as many opinions as either Justices Alito or Thomas who both authored the second most opinions with three each.  Justice Roberts authored the next greatest number of opinions with two and all remaining Justices either wrote zero or one opinions.  From this graph the liberal Justices appear to have far less control over these decisions than the conservative Justices.  Justice Kennedy goes between these two poles and Justices Roberts, Thomas, and Alito all predominately wrote conservative decisions (Justice Roberts has one opinion which supports the liberal position as I discuss below) supporting the death penalty in these cases.

This begs the question of what evidence is there that the Supreme Court’s support for the death penalty is dissipating.  Until 2015, 56% of the Courts decisions (10 of 18) were conservative or supported the death penalty.  When the 2015 cases are included, however, the percentage of these decisions supporting the death penalty ebbs to 43%.  That is because all five of these cases decided this Term ruled that an aspect of the trial court’s procedure was improper.  Two of these cases, Wheeler and Hurst, were decided when Justice Scalia still sat on the Court.  The other three – Foster, Lynch (decided without oral argument), and Williams – were decided after his death.

Even with more agreement among the Justices in this Term’s cases, there was still a clear ideological element to the voting coalitions.  The dissenting votes in these cases included three from Justice Thomas, two from Alito, and one from Roberts.  Roberts, however, wrote the majority opinion in Foster which held that the voir dire for selecting the Georgia jury was flawed when the state was allowed to strike all four black prospective jurors.

In an earlier post, I wrote about how the Court may be shifting in a liberal direction and how the more liberal Justices could catalyze this process by strategizing to form a voting bloc.  One area where this very well may play out accordingly is with death penalty cases.  As the Court has already decided to hear two death penalty cases in the next Term, Buck v. Stephens and Moore v. Texas, this issue will be high on the Court’s agenda.  The liberal Justices do not seem to be giving ground on this issue and with a current 4-4 balance in the Court they can thwart any attempt to support the death penalty in upcoming cases.  If the next confirmed Justice supports further reform of capital punishment, the underpinnings of this practice in the U.S. may be questioned in these two or other cases (although the practice as a whole is not directly at issue in either of the two cases slated for next Term).  One more vote could very well lead to a return of the moratorium on the death penalty that this country saw in the mid-1970’s between the Court’s rulings in Furman v. Georgia and Gregg v. Georgia and so this surely will be an interesting issue to follow in the upcoming Supreme Court term(s).

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