The Roberts Court Needs To Reboot The Machinery Of Death

In the span of one year, the Burger Court created a constitutional contradiction. Furman v. Georgia (1972) proclaimed that the Eighth Amendment prohibits states from terminating the life of murderers. One year later, Roe v. Wade (1973) ruled that the Fourteenth Amendment prohibits states from protecting the life of the unborn. Both rulings represented the heights of judicial hubris. The Justices, and not the elected branches, would decide who could live and who could die. Neither ruling was even remotely plausible as an originalist matter. Both rulings led to chaos and uncertainty in the law.

While the Supreme Court would not revisit Roe for nearly two decades, the Court returned to the death penalty four years later. In the face of a popular backlash, the Court in Gregg v. Georgia (1976) allowed the states to resume executions. But this decision still allowed the judiciary to superintend capital punishment based on “evolving standards of decency.” This sort of living constitutionalism is an anathema to the notion of a written Constitution. But worse still, this standard gives liberal elites who define “decency” the power to define our justice system. This regrettable standard persists to the present. Just last week, the Supreme Court declined to resolve a capital case where mental health professionals insisted that a cold-blooded killer could not be executed because one of his five IQ scores may have been too low. The Court owes the victims of brutal murders and the Constitution far better. The machinery of death needs a reboot.

The Eighth Amendment prohibits “cruel and unusual punishment.” In Trop v. Dulles (1958), Chief Justice Earl Warren untethered this standard from the founding era. Rather, he wrote, the clause referred to “evolving standards of decency that mark the progress of a maturing society.” A pair of capital cases, Furman v. Georgia (1972) and Gregg v. Georgia (1976), constitutionalized this standard. The problem, of course, is that “decency” would invariably be defined by liberal cultural elites. Perhaps one of the most egregious illustrations of this principle was Atkins v. Virginia (2002). The Supreme Court declared that it was unconstitutional to execute a person who was intellectually disabled. Here, Justice Anthony Kennedy’s majority opinion invoked the living constitutionalism standard from Trop v. Dulles and Gregg v. Georgia. He found a “national consensus” against executing the mentally retarded because eighteen states barred it, and “scholars” had “deliberated” over the issue. I realize lawyers tend to be bad at math, but eighteen represents a minority of the fifty states. The other thirty-two states should have been able to continue deliberating the issue. Worse still, Justice Kennedy invoked the European Union's practice, as if the liberal views of those enlightened countries had any bearing on the meaning of our Constitution.

Atkins spawned a bizarre, perverse incentive: a capital defendant could avoid the lethal injection by doing poorly on an IQ test. Moreover, the courts would look to purported experts within groups such as the American Psychological Association for guidance. However, the APA and similar groups are not neutral actors. As Professor Craig Lerner pointed out, these are blatantly liberal groups that want to abolish the death penalty. Why should their abolitionist views be privileged in any constitutional sense? But this is exactly what Trop and Gregg have wrought: the courts look to liberal elites in America and abroad to define the modern standards of decency. Professor John McGinnis observed that journalists, academics, and entertainers form part of the modern clerisy, the “secular, learned class” that has “an enormous advantage in democratic life because influencing opinion is part of its work.” Conservatives stand no chance against this cabal, which uniformly opposes the death penalty. Those who favor capital punishment will be attacked from every corner of society as savages who lack any decency. Trop is a trap, a one-way ratchet that only goes to the left. The death penalty is yet another liberal institutional asymmetry.

Over the course of two decades, Atkins has sown confusion in the law and created insurmountable obstacles to executing indisputably guilty people. Consider Hamm v. Smith, the Supreme Court’s latest misadventure in this field. In 1997, Joseph Clifton Smith violently murdered a man with a power saw. There is no question that Smith committed the offense three decades ago. There is also no doubt that his trial followed all the rules of procedural fairness. Smith’s only defense is that under Atkins v. Virginia (2002), he is “mentally retarded,” and therefore cannot be executed. Even though he could read at an eleventh-grade level and his highest IQ score was 78, the court of appeals ruled that his lowest score of 72 was close enough to an arbitrary floor of 70. Alabama appealed to the Supreme Court seeking clarity on the appropriate IQ standard for executions.

Did the Justices agree or disagree with this ruling? We don’t know. Five months after oral argument, a 5-4 majority simply dismissed the petition “as improvidently granted” and said nothing. Justice Alito dissented, joined by Justice Thomas in whole, and Chief Justice Roberts and Justice Gorsuch in part. Alito charged that the majority “shies away from its obligation to provide workable rules for capital cases.” Here, Alito was looking directly at Justices Kavanaugh and Barrett, who provided the fourth and fifth votes to dump the case. Why did the two Trump appointees refuse to decide the case? My theory is that the facts here were unusual, as Smith took five different IQ tests with a wide range of scores. The Justices may not have wanted to set a rule based on such messy facts, so they just excused this savage murderer from death row.

Whatever the reason, this dismissal illustrates the flaws of Atkins and Trop. The judiciary should not be in the business of superintending capital punishment based on inconsistent tests developed by professional bodies that oppose all capital punishment. Justice Alito is certainly correct that the justices need not “mirror” the way that clinicians understand IQ tests, and should not “yield to every putative expert consensus.” But the deeper problem is that the Court should not base any of its jurisprudence on tests assembled by self-interested organizations. Would the Supreme Court unquestionably adopt a gun control standard adopted by the NRA in a Second Amendment case or a pollution test automatically adopted by OPEC in a climate change case? Of course not.

In United States v. Skrmetti (2025), the Supreme Court rejected the “expert” views of those who favored irreversible and dangerous gender reassignment procedures for children. The Supreme Court cannot transfer the state’s police power to elites who do not speak for the people. When any group like the APA says “trust the evidence,” courts should realize this is an issue on which society disagrees, and not give these groups any special standing. The people of Alabama know better than the professors of the APA. Lynyrd Skynyrd can tell you why.

In Hamm v. Smith, Justice Thomas, standing alone, called on the Court to overrule Atkins. He is certainly correct. This ruling was egregiously wrong, failed to create any certainty in the law, and murderers cannot plausibly rely on this decision. Even lower court judges can’t figure out how to apply it. Justice Alito and the other dissenters stopped short of calling on the Court to overrule Atkins. But Alito did observe that “[i]f this Court continues to shy away from opportunities to provide workable doctrine, we should not be surprised if [cert] petitions asking us to overrule Atkins” and other recent cases “arrive at our doorsteps soon.”

Given the ham-handed dismissal in Hamm, state Attorneys should go on offense. They should ask the Court to reverse Gregg, Atkins, and all related cases in every petition and cross-petition. The states need a power saw to remove this doctrine root and branch. The Court should once and for all eliminate the evolving standards test. The Eighth Amendment should be interpreted in an originalist fashion like the rest of the Bill of Rights. IQ tests did not exist in 1787, yet our framers somehow managed to execute people. States are free to impose greater restrictions on capital punishment or ban it altogether. But this issue is not for the judiciary to decide. Gregg v. Georgia should meet the same fate as other discarded Burger Court precedents like Roe, Bakke, Chevron, Lemon, and the list goes on.

Two decades after Gregg, Justice Harry Blackmun concluded that all forms of capital punishment were unconstitutional. Blackmun, the author of Roe v. Wade, may have been President Nixon’s greatest mistake. Watergate was over in a few years, but Blackmun’s judicial impact stretched two decades. In Callins v. Collins (1994), Blackmun declared, “From this day forward, I no longer shall tinker with the machinery of death.” Blackmun got it exactly backwards. Judicial abolition of the death penalty was the problem, not the solution. The way for judges to stop tinkering with the machinery of death is to stop tinkering with the machinery of death. The Roberts Court should reboot the machinery of death, and get the judiciary out of this interminable quagmire.

Josh Blackman holds the Centennial Chair of Constitutional Law at the South Texas College of Law Houston, is a contributing editor to Civitas Outlook, and is an adjunct fellow at the Manhattan Institute.