The Roberts Court seems to be methodically scaling back the excesses of the Burger Courts. But one area that has not yet been revisited is the death penalty. Despite the Court imposing "history and tradition" tests for other aspects of the Bill of Rights, the Eighth Amendment still follows the "evolving standards of decency" standard. This sort of living constitutionalism is an anathema to the notion of a written Constitution. One of the most egregious manifestations of this standard was Atkins v. Virginia. This standard was egregiously wrong and has proven impossible to implement. And murderers with purported intellectual disabilities cannot plausibly rely on this or any other Supreme Court precedent. Yet Atkins remains. Just last month the Court DIG'd Hamm v. Smith, I suspect, because Justices Kavanaugh and Barrett didn't want to decide it. I suspect there will be leaks from the Court to make sense of this flip.

The Court needs to start over on the Eighth Amendment. Or in today's lingo, they need a reboot. My new essay in Civitas Outlook is titled, "The Roberts Court Needs To Reboot The Machinery Of Death."

Here is the introduction:

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.

And the conclusion:

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.

The entire Eighth Amendment jurisprudence has been an abject failure at every level. In my mind, the most perverse aspect of the abolition movement is that so much effort is aimed at helping the most gruesome murderers, even as defendants who committed far less serious offenses with a greater chance of success are severely underrepresented. States are free to abolish capital punishment, and the federal courts should exit this thicket.

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