It seems possible that the Chief Justice assigned the majority to Justice Alito, but something happened along the way, and Justices Kavanaugh and Barrett decided to DIG.
On Thursday, the Court DIG’d Hamm v. Smith, a tangled death-penalty dispute that has been dragging on for three decades. There are several notable quirks about this awkward DIG. Indeed, it may be that Justice Alito ended up losing the majority opinion.
First, more than five months passed between oral argument in December and the DIG in May. That is unusually long for a DIG. Typically, when a case presents problems with the vehicle, questions arise at oral argument about it. Yet there didn’t seem to be any clear signals at argument that a DIG might be on the docket. Moreover, these long-running DIGs are usually unanimous, or nearly so, with no separate opinions. But here, there was a substantial concurrence from Justice Sotomayor, a dissent from Justice Thomas, and a dissent from Justice Alito, joined by three others. My sense is that there was a majority to reverse at conference, but that majority collapsed later on.
Second, Justice Alito’s dissent from the DIG was wholly joined by Justice Thomas, but the 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 plausible to me that the Chief would have assigned the majority to Justice Alito after the conference, and then, when the majority fell apart, the Chief did not flip. Perhaps Alito had already made changes to his opinion to placate the Chief.
Third, in the December sitting there were eight argued cases. So far, opinions have been written in four of them by Justices Thomas, Kagan, Gorsuch, and Jackson. The Hamm DIG is, as is customary, unsigned. But someone would have held the majority after conference. There are three remaining cases. I am fairly confident that Chief Justice Roberts will author the majority 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 opinions, my theory would crumble. But if Justice Kavanaugh, for example, writes the campaign-finance case, and Justice Sotomayor handles the (less gripping) investment case, that would keep my theory alive.
Fourth, portions of Justice Alito’s dissent read like a majority opinion. It runs more than twenty pages and spends a good deal of time laying out the doctrine. There is also a very detailed statistical study—an area that lawyers do not usually master. If this were merely a dissent from a DIG, I don’t think that level of detail would have been necessary for a one-off case.
Fifth, there is some language in Justice Alito’s dissent that casts aspersions on the majority—specifically Justices Kagan, Kavanaugh, and Barrett who chose not to write. Alito charges:
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 express a view on the issue, that ought to be enough to settle the merits. Certainly the other three Justices could have joined one camp or another. But they did not. They kept quiet.
Justice Alito takes the matter a step further. In the opening portion, he suggests the majority lacks (trigger warning) the courage to meet 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.
He reiterates this accusation in the concluding portion:
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 frequently levels this charge of “shying away” from tough questions. This critique seems aimed especially at Justices Kavanaugh and Barrett. One might assume the Chief Justice joined in, but I doubt it. Roberts only joined Parts I, III, and IV. The line about “shying away” appears in the preface before Part I and in the concluding material after the three asterisks. We cannot attribute these remarks to the Chief. Still, Roberts did not need to indicate his vote in the DIG at all, yet he did so anyway.
Sixth, the reasons for the improvised arrangement remain unclear. What unsettled Justices Kavanaugh and Barrett? Perhaps Justice Kagan, who was unusually reticent, found grounds to avoid deciding the matter? Maybe they recognized how unusual this dispute was—given the multiple IQ-type inquiries—and concluded it was unlikely to recur, so they let it lie without setting a new precedent. Maybe they simply didn’t want to decide this term. Of the three appointees of the Trump era, Justice Barrett has been the most open to capital-defendant rulings. In 2021, Barrett joined the liberals in halting the execution in Dunn v. Smith. Both Barrett and Kavanaugh subsequently ruled for Richard Glossip (who is presently on bail).
After all these years of litigation, two appearances before the Court, prolonged briefing, and oral argument, a DIG leaves one unsatisfied. Justice Alito underscored this sentiment nicely:
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 needed to operate on the machinery of death, but instead, the DIG hands believers in abolitionists an undeserved victory.
This year, Greg v. Georgia marks its fiftieth anniversary. What a misstep the entire line of cases has become. I commend Craig Lerner’s excellent essay in Civitas and urge the Court to step back from the micromanagement of the death penalty, a doctrine that has little to do with the original meaning of the Constitution. The Court has already pulled the judiciary out of other regrettable 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 pile. And while they’re at it, the Court should overturn Nixon v. GSA, discard the flawed parts of Buckley v. Valeo, and get rid of the problematic Penn Central test, as Richard Epstein reminds us. There is a great deal of reform still needed.
