The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a dissenting opinion filed Monday in Glossip v. Gross, Justices Breyer and Ginsburg suggested that they have decided, after decades on the Court, that the death penalty is categorically unconstitutional. Other Justices have done the same thing. Justices Stevens and Blackmun also decided, after decades on the Supreme Court, that the death penalty was unconstitutional. Over at Dorf on Law, Michael Dorf asks what might explain this late career conversion. Why would so many Justices change their minds, only after serving on the Court for decades, about this one issue?
I have a theory on that. It's pure speculation, to be clear. But while we're speculating, here's my guess: It's the cumulative effect of the workload.
Many people think the lives of Supreme Court Justices are filled with weighty constitutional debates. But like most employees, the Justices spend some time at their jobs on stuff that they would probably not want to spend time on if they had the choice. One of those areas is capital punishment. The Justices spend a surprising amount of their energy on capital litigation. For a country of over 300 million people, there aren't many actual executions—these days, only about forty a year. But the Justices are deeply involved in a surprising amount of capital litigation.
Think about how the death penalty operates from the perspective of a Supreme Court Justice. The Justices see most capital cases multiple times. First, they see cases on direct review after conviction. Then at the habeas stage. Then over second habeas petitions. Then over claims that the condemned is not sane enough or intelligent enough to be executed. Then over claims that the method of execution is not permitted. Then over whatever new claim the capital defense bar has come up with recently. And in almost every planned execution in the U.S.—around one a week—there will be a last-minute appeal to the Justices to stop the execution sometimes filed just hours before it happens.
The cases are gruesome. It's not like a fun First Amendment issue; there's no license plate jurisprudence to ponder here. Instead, every case involves a murder. And often the facts are shocking or brutal.
The Justices have to vote on all of these cases. And they take the cases really seriously. All capital cases get specially flagged. Law clerks know to take them extra seriously. The Court has a special employee in the Clerk's Office just for capital litigation. And the Justices have to deal with these cases whenever they come up. They might be enjoying a nice vacation, or they might be at the opera. But if a capital petition comes in, and an execution is scheduled, the Court must rule. All the Justices have to vote and do so very quickly.
So here's my theory: I suspect that the reason several Justices have late-career conversions against the death penalty is that decades of deciding death penalty cases becomes taxing and depressing. If you're a Justice who favors the death penalty, it's a grim but necessary part of the job. If anything, you're probably frustrated that so much attention ends up being focused on such a small part of the criminal justice system. But if you're a Justice who doubts or opposes the death penalty on a personal level, so much work on capital cases, year in and year out, never ending, constantly coming your way—it probably begins to wear on you. It never seems to stop. And there is no way to get away from it.
Except there is a way. It's a really simple way. All you need to do is get four other Justices to agree with you to end the death penalty. If you take just one of these cases and can get four other votes, you can immediately and permanently end the part of your job that you dislike the most. [UPDATE: To clarify, I'm not saying that it's a conscious decision. I'm saying that the stress and burden of the caseload—something that is hard to appreciate from the outside—has an influence on a Justice's view over time. The idea that the death penalty is categorically unconstitutional becomes much more appealing in light of the Justice's stress over that part of the docket.]
This is just speculation, as I said. But my guess is that this has a role in explaining the late-career conversions. It's not that Justices who have been on the Court for 20+ years suddenly stumble across new arguments that the death penalty is unconstitutional. They don't. It's that some Justices are sick and tired of having to spend so much of their lives on depressing death penalty cases. Consciously or not, I suspect that this has an influence on the late-career conversions.
ANOTHER UPDATE: I should perhaps add that this theory is part of my broader sense that self-interest sometimes guides the court's docket. Consider three additional examples:
1) In 1973, in Miller v. California, the Supreme Court changed the definition of obscenity. Before Miller, the obscenity standard was based on a de novo legal review that the Justices had to undertake themselves. They had a regular "dirty movie night" where all of the Justices had to go into a room and watch porn together in order to identify what items they thought were obscene. They had to watch all the movies in all the cases before them, and it was a serious drag and demeaning to the Court. In 1973, the Justices changed the law in a way that let them cancel "dirty movie night." The new legal standard was based on local "community standards" instead of a national legal standard. Under the Miller test, obscenity became an issue for local juries instead of the nine Justices. The Justices then canceled movie night. It is widely thought that this was no coincidence: The Justices changed the law, it is often speculated, in order to lift the Justices' burden under the old legal standard.
2) It often seems the case that the first month of oral argument in the new Supreme Court Term features mostly boring and technical cases, while the last month of oral argument in the Term tends to features more blockbusters. At least that's a dynamic I have seen before. If I'm right about that, you might wonder, why? My theory is that the law clerk incentives change. When the clerks are advising the Justices on cases that will be argued at the end of the Term during which they are clerking, those will be the last cases the clerks work on before they leave the Court. The clerk incentive is to have the Court grant on memorable and fascinating cases. On the other hand, once the calendar turns over and the clerks are recommending grants for the next Term, the cases will go to the next Term's clerks. The incentives change, and clerks are more willing to recommend that the Court grant on boring and technical cases.
3) It seems that every Term there are at least a handful of high-profile and sexy con law cases. My theory—again, just speculation—is that you can expect that to happen every Term in part because the Justices want those cases to keep their jobs interesting. When the Justices are deciding which cases to grant, they're deciding what cases they will spend time on. If every case is a tax or bankruptcy case, the job gets kind of dry. So they'll spice it up with a good First Amendment case here or there.
YET ANOTHER UPDATE: Via Twitter, Tom Taylor points out another example—at least according to one Justice—from last week's decision striking down the residual clause of the Armer Career Criminal Act on vagueness ground. Here is the beginning of Justice Alito's dissent:
The Court is tired of the Armed Career Criminal Act of 1984 (ACCA) and in particular its residual clause. Anxious to rid our docket of bothersome residual clause cases, the Court is willing to do what it takes to get the job done. So brushing aside stare decisis, the Court holds that the residual clause is unconstitutionally vague even though we have twice rejected that very argument within the last eight years. The canons of interpretation get no greater respect. Inverting the canon that a statute should be construed if possible to avoid unconstitutionality, the Court rejects a reasonable construction of the residual clause that would avoid any vagueness problems, preferring an alternative that the Court finds to be unconstitutionally vague. And the Court is not stopped by the wellestablished rule that a statute is void for vagueness only if
it is vague in all its applications. While conceding that some applications of the residual clause are straightforward, the Court holds that the clause is now void in its entirety. The Court's determination to be done with residual clause cases, if not its fidelity to legal principles, is impressive.