In 1972, when the Supreme Court invalidated the then-extant death penalty statutes in Furman v. Georgia, only two Justices--Brennan and Marshall--concluded that the death penalty is unconstitutional under all circumstances. The balance of the Court set forth criteria that would need to be satisfied for states to carry out executions and, four years later in Gregg v. Georgia and its companion cases, the Court largely upheld the state responses. Although Justices Brennan and Marshall were often joined by other Justices in accepting claims that the death penalty was unconstitutional in particular circumstances, for a long time they were the only Justices to express the view that the death penalty is invalid in all circumstances.
Justices Powell, Blackmun, and Stevens eventually changed their mind, but too late to do much good for death-sentenced petitioners. Powell told his biographer that he thought the death penalty invalid in all cases, but only after he retired from the Court. Blackmun stirringly announced: "From this day forward, I no longer shall tinker with the machinery of death." But the announcement came just months before he retired. And Justice Stevens voted to uphold a death sentence in Baze v. Rees, even as he explained that he had come to the conclusion that the death penalty itself is categorically unconstitutional, a position he has reaffirmed in retirement.
As Justice Scalia says in his concurrence today in Glossip v. Gross "Welcome to Groundhog Day." Justice Scalia says that in response to what he regards as tired and unpersuasive arguments against the death penalty. I disagree with his characterization of those arguments but he is right that the case has an element of deja vu about it. Once again, Justices conclude after a long career of applying the Court's death penalty precedents that it's time to give up and declare the whole thing unconstitutional. Here is the takeaway from Justice Breyer, joined by Justice Ginsburg:
In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.Justices Scalia and Thomas, in separate concurrences each joined by the other, fight back. Here I'll bracket the disagreement over specifics to note the broader phenomenon. We now have five Justices who started out accepting that at least some death sentences could be imposed consistent with the Constitution but eventually concluded that none could. This is a phenomenon worth studying.
Much has been written, including by me, about the evolution of some Republican appointees from conservative to liberal. Given his votes this Term (in particular in the Fair Housing Act Case, King v. Burwell, Obergefell v. Hodges, and the Arizona Redistricting Case), much ink will likely be spilled in the coming months about Justice Kennedy's liberal turn--although such discussion may well prove quite premature. Justice Kennedy was in the majority today in Glossip and in Michigan v. EPA. And the Court granted cert again today in Fisher v. University of Texas. I'm guessing it's not because a majority of the Court wants to write an opinion congratulating the Fifth Circuit on its handling of the remand.
Some of the death penalty evolution of particular Justices could perhaps be fit into a broader frame of conservatives gone liberal. Certainly Justices Blackmun and Stevens became more liberal over time, and arguably Powell did as well. But in each case, the general turn to the left long preceded the conclusion that the death penalty is unconstitutional under all circumstances. And the narrative doesn't work at all for Justices Ginsburg and Breyer, Democratic appointees who were never conservative. But they too applied the death penalty precedents (albeit quite liberally) for many years before deciding that the game was not worth the candle.
For now, I don't have a strong hypothesis about what explains this phenomenon of late-in-career or post-retirement conversion on the death penalty but I do think it is a distinct phenomenon. Perhaps--and I acknowledge that this is highly speculative--as a Justice comes closer to facing his or her own mortality it becomes especially difficult to continue to participate in an institution that prematurely ends the lives of others, even if those others have committed truly heinous acts.