The Supreme Court announced on Thursday that it will not decide Hamm v. Smith, a case involving a genuinely difficult constitutional question about whether an Alabama inmate may lawfully be executed.
The immediate upshot of this decision is that Joseph Clifton Smith, who’s at the heart of this case, will not be killed. Smith prevailed in the federal appeals court that previously heard his case. And the fact that the justices decided not to decide Hamm — they dismissed it “as improvidently granted,” to use the Court’s precise legal terminology — means that Smith’s victory in the lower court stands.
Though the full Court issued no opinion in Hamm, six justices joined at least one of three concurring or dissenting opinions revealing how they thought the case should have been decided. Justice Sonia Sotomayor’s concurring opinion offers a likely explanation for why her Court chose to make this case go away. Meanwhile, Justices Clarence Thomas and Samuel Alito’s dissenting opinions reveal some riffs among the Court’s Republicans.
In Atkins v. Virginia (2002), the Supreme Court held that it is unconstitutional to execute someone with an intellectual disability. The Hamm case largely turned on whether Smith’s IQ is low enough that he qualifies as intellectually disabled. But most of the justices appear to have thrown up their hands and determined that they are not well-positioned to determine Smith’s IQ.
Sotomayor’s opinion suggests that Alabama may have lost this case because of inept lawyering. Among other things, she points out that none of the expert witnesses that testified in a lower court, including Alabama’s own expert, used the same methods to determine Smith’s IQ “that Alabama now claims is necessary.”
At least some constitutional protections against capital punishment are probably safe, for now.
Because the Supreme Court has the final word on questions of constitutional law, the justices are supposed to be reluctant to decide questions that are not fully vetted by lower courts, due to the risk that the Court could hand down an uncorrectable error if it decides a case too hastily. Thus, Sotomayor argues that her Court was right to “exercise caution” by not handing down the definitive word on a constitutional question that was not fully aired in other forums.
Meanwhile, at least some of the Republican justices appear to have backed away from more hardline positions that they took in the past. That means that at least some constitutional protections against capital punishment are probably safe, for now.
Most of the Republican justices appear to have made peace with Atkins
The Court’s right flank has historically opposed Atkins altogether. The late Justice Antonin Scalia, for example, claimed in Atkins that only “severely or profoundly” disabled people — perhaps those with an IQ of 25 or lower — are protected from execution. But, under the Atkins framework, people with an IQ of 70 or below are often ineligible for the death penalty. And people who test slightly higher than 70, such as Smith himself, may also sometimes show that they are intellectually disabled by pointing to other factors besides IQ.
But only Thomas, who wrote a dissenting opinion in Hamm that was joined by no one else, called for Atkins to be overruled.
It’s particularly surprising that Justice Neil Gorsuch, who previously has expressed very hardline views in death penalty cases, appeared to chart a more moderate course in Hamm. Gorsuch seemed to suggest in Bucklew v. Precythe (2019) that his Court should toss out the entirety of its past 60 years worth of cases interpreting the Eighth Amendment’s ban on cruel and unusual punishments, and instead adopt a new rule that would allow the government to impose very high penalties for minor crimes.
But, of the three Hamm opinions, only Thomas cited Bucklew. And Gorsuch neither joined Thomas’s opinion nor did he join some parts of Alito’s opinion, which called for harsher rules in Atkins cases. So it appears that Gorsuch’s Bucklew opinion may be an orphan.
Alito, meanwhile, wrote a bifurcated opinion, major parts of which were joined by a total of four justices — Alito, Chief Justice John Roberts, Thomas, and Gorsuch. But only Thomas joined the part of Alito’s opinion which called for the most limits on Atkins.
The parts of Alito’s opinion that were joined by four justices largely concern the unusual facts present in Hamm.
It’s safe to say that Smith’s claim that he is intellectually disabled is marginal. While courts consider whether a capital defendant’s IQ is below 70 in order to determine if that defendant is intellectually disabled, Smith took several tests that measured his IQ somewhere in the 70s — and none of them showed that he has an IQ of 70 or below.
Under the Court’s previous death penalty cases, the fact that a death row inmate tests slightly above 70 is not fatal to his Atkins case — in part because IQ tests have a margin of error and may overestimate a test subject’s IQ. But Alito essentially argues that someone like Smith, who took multiple tests that showed him with an IQ above 70, may be executed.
In the part of his opinion joined only by Thomas, meanwhile, Alito claims that “‘higher scores are likely to be more indicative’ of a person’s intelligence than the lower scores,” a rule that would potentially doom capital defendants with a wide range of scores, some of which are below 70.
Still, it’s notable that Alito focused his opinion so closely on the minutiae of the Hamm case, without making broader attacks on Atkins or on the general rule that intellectually disabled people may not be executed. It is tough to evaluate where the full Court stands on Atkins, as three justices — Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — were silent in Hamm. But it now appears likely that the Court’s current majority does not plan a wholesale assault on Atkins, or on the Court’s broader framework for determining which punishments are impermissible. That’s good news for inmates whose lives could be spared by Atkins and similar cases.
The Court’s Republican majority is often hostile to past precedents that were decided by more liberal justices. Indeed, at times, they appear to have been going through a checklist, overruling decisions where the Court’s right flank lost and transforming dissents by justices like Scalia or Thomas into majority opinions. But, for now, at least, it appears that Atkins is not on this Court’s checklist.
