On Thursday, the Court DIG'd Hamm v. Smith, a messy death penalty case that has been going on for three decades. Several things are unusual about this ham-handed DIG. Indeed, it is possible that Justice Alito lost the majority opinion.
First, more than five months elapsed between oral argument in December and the DIG in May. This is an exceptionally long time for a DIG. Usually when a case presents vehicle problems, there are questions at oral argument about it. But I didn't see any clear signs at OA that a DIG might be in the cards. Moreover, these sorts of long-term DIGs usually are unanimous, or close to it, in which case there are no separate writings. But here, there was a lengthy concurrence from Justice Sotomayor, a dissent by Justice Thomas, and a dissent by Justice Alito, joined by three others. My guess is that there was a majority to reverse at conference, but that majority fell apart.
Second, Justice Alito's dissent from the DIG was joined by Justice Thomas in whole, but Chief Justice Roberts and Justice Gorsuch did not join Part II. The Chief is almost never in dissent--especially in a case of this magnitude. It seems more likely to me that the Chief would have assigned this majority opinion to Justice Alito after the conference, and then when the majority fell apart, the Chief didn't jump ship. Perhaps Alito had already made changes to his opinion to assuage the Chief.
Third, in the December sitting, there were eight argued cases. So far, opinions have been authored in four of them by Justices Thomas, Kagan, Gorsuch, Jackson. The DIG in Hamm is, as per custom, unsigned. But someone would have had a the majority after conference. There are three remaining cases. I am fairly confident that Chief Justice Roberts will write the majority opinion in Slaughter. The other two cases are NRSC v. FEC and FS Credit Opportunities Corp. v. Saba Capital Master Fund (involves the Investment Company Act). If Justice Alito authors either of these cases, my theory falls apart. But if Justice Kavanaugh, for example, writes the campaign finance case, and Justice Sotomayor gets the (boring) investment case, that keeps my theory viable.
Fourth, parts of Justice Alito's dissent reads like a majority opinion. It is more than twenty pages long, and spend some time walking through the doctrine. There is also a really detailed study of statistics--a topic that usually does not come easily to lawyers. If this was just a dissent from a DIG, I don't think this level of detail was need for what is basically a one-off case.
Fifth, there is some language in Justice Alito's dissent that casts aspersion on the majority--in particular Justices Kagan, Kavanaugh, and Barrett who chose not to write. Alito charge:
The Court nonetheless dismisses this opportunity to provide much-needed guidance to lower courts, even though six Justices stake out a position on whether the decision below is correct. See ante, at 13 (SOTOMAYOR, J., joined by JACKSON, J., concurring).
In other words, if six members of the Court opine on the issue, that ought to be enough to settle the case on the merits. Certainly the other three Justices could have picked a camp. But they didn't. They remained silent.
Justice Alito takes things a step further. In the introductory section, he suggests the majority lacks (trigger warning) courage by shying away from its duties:
I respectfully dissent from the Court's decision to leave this important question unanswered. At the very least, we should reverse the lower courts' erroneous analysis of Smith's scores and remand for a fresh consideration of his Atkins claim using any sound method. Even if our decision went no further, we would provide clarity and coherence to one aspect of our Atkins doctrine. Instead, the Court shies away from its obligation to provide workable rules for capital cases. In doing so, the Court disserves its own death-penalty jurisprudence, States' criminal-justice systems, lower courts, and victims of horrific murders.
Alito repeats this charge in the concluding section:
By instead remaining silent, the Court exacerbates the confusion that plagues our jurisprudence in this area. If this Court continues to shy away from opportunities to provide workable doctrine, we should not be surprised if petitions asking us to overrule Atkins, Hall, and Moore arrive at our doorsteps soon.
Alito often makes this charge of "shying away" from difficult issues. This attack has to be directed at Justices Kavanaugh and Barrett in particular. You might think that the Chief Justice joined this barb, but I don't think he did. Roberts only joined Parts I, III, and IV. The "shies away" line appears in the prefatory material before Part I and the concluding material after the three asterisks. We cannot ascribe these claims to the Chief. Still, Roberts did not need to signal his vote here at all, given the DIG, but chose to.
Sixth, it isn't clear what happened here. What spooked out Justices Kavanaugh and Barrett? Perhaps Justice Kagan (who was awfully quiet) found some reason to avoid deciding the case? Maybe they realized this dispute was so unusual--given the multiple IQ tests--and was unlikely to repeat, that they just let it go without setting another precedent? Maybe they just didn't want to decide this case this term? Of the three Trump appointees, Justice Barrett has been the most willing to find for capital defendants. In 2021, Barrett joined the liberals in blocking the execution in Dunn v. Smith. Both Barrett and Kavanaugh ruled for Richard Glossip (who is actually now on bail).
After all of these years of litigation, two trips to the Supreme Court, extended briefing, and oral argument, a DIG is so unsatisfying. Justice Alito stated this point well:
The crux of JUSTICE SOTOMAYOR's stance appears to be that the Court erred by granting certiorari on the question as formulated by the United States. Ante, at 7. But this petition-stage gripe is no reason to dismiss the case a year later. The parties and amici—not to mention Members of this Court—devoted substantial resources to this case and thoroughly addressed the question presented, and that question is dispositive to the judgment below.
Here, the Court really needed to tinker with the machinery of death, but instead, the DIG hands an undeserved victory to the abolitionists.
This year, Greg v. Georgia celebrates its fiftieth anniversary. What a mistake the entire line of cases has become. Let me commend Craig Lerner's excellent essay in Civitas and urge the Court to get out of the micromanagement of the death penalty, a doctrine that has no bearing in the original meaning of the Constitution. The Court has already extricated the judiciary from other terrible Burger Court precedents: Roe, Lemon, Abood, Bakke, Gingles, United States v. Nixon, TWA v. Hardison, Chevron, Apodaca, Nevada v. Hall, Williamson County, Davis v. Bandemer, and more. Add the "evolving standards of decency" test to that ash heap. And while they're at it, the Court should overrule Nixon v. GSA, get rid of the bad parts of Buckley v. Valeo, and eliminate the awful Penn Central test, as Richard Epstein reminds us. There is so much work to be done.
