The Supreme Court took the unusual step on Thursday of dismissing a case that it had already heard, handing a rare win to a death-row prisoner and avoiding a ruling that could make it harder for other prisoners with intellectual disabilities to avoid execution.
In rare cases, the justices agree to hear a case, only to conclude later that it would be inappropriate or unnecessary for the high court to decide the case. When this happens, the court can decline to rule for either side and instead hold that the case is “dismissed as improvidently granted.” For brevity’s sake, most observers typically say these cases were “DIG’d.”
The court does not typically announce the vote breakdown when DIG-ing a case. Thanks to the concurring and dissenting opinions, it can be readily inferred this time. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch all dissented from the court’s move. Logically, that means Justices Brett Kavanaugh and Amy Coney Barrett joined with the court’s liberals to nix the case.
In a concurring opinion, Justice Sonia Sotomayor applauded the court’s decision to avoid a ruling. “Here, neither Alabama nor the United States seriously contends that the District Court’s finding was clearly erroneous,” she explained in a concurring opinion joined by Justice Ketanji Brown Jackson. “For good reason: It was not.”
Alito argued in dissent that the lower courts had misapplied precedents on executing people with intellectual disabilities and criticized his colleagues for not clarifying them. “By instead remaining silent, the Court exacerbates the confusion that plagues our jurisprudence in this area,” he claimed.
Thursday’s decision is good news for Joseph Smith, the death-row inmate in this particular case. Since the Supreme Court issued no actual ruling, the lower court decision where he prevailed is the final word. An Alabama jury convicted him of murdering Durk Van Dam in 1997 in a dispute over money. After receiving a death sentence from the trial court, Smith and his lawyers challenged the death sentence in court by claiming that he was intellectually disabled. They pointed to IQ tests where he scored in the mid-to-high 70s, as well as other evidence of his poor educational performances and low mental aptitudes.
It is a long-standing principle of the Anglo-American legal system that people with mental illnesses and intellectual disabilities are less culpable for their crimes. Lord Blackstone, the famed eighteenth-century judge and legal commentator, noted in the parlance of his era that “idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities: no, not even for treason itself.” He invoked a Latin legal maxim that, translated into English, meant “Madness alone punishes the madman.”
In 2002, the Supreme Court held in Atkins v. Virginia that the Eighth Amendment’s ban on cruel and unusual punishment includes executing people with intellectual disabilities. Using an Eighth Amendment test that it had applied since the 1950s, the court looked at whether there was a national consensus against executing people with intellectual disabilities and concluded that one existed. (More on that test later.)
“Those mentally retarded persons who meet the law’s requirements for criminal responsibility should be tried and punished when they commit crimes,” Justice John Paul Stevens wrote for the court, using the parlance of his time. “Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.”
The Atkins ruling did not specify the level of intellectual disability that could be permitted for an execution, nor did it spell out how to discern when someone met the constitutional threshold. Some death penalty states responded to Atkins by enacting a bright-line cutoff, typically at an IQ of 70. In 2014, the Supreme Court weighed in again by ruling that Florida could not execute a man whose IQ score had ranged between 71 and 80. This time, the court held that defendants must provide additional evidence of intellectual disability in “borderline” cases.
In this particular case, Smith took two tests from two experts, one hired by his own lawyers and one hired by the state. He scored a 74 on his lawyers’ test and a 78 on the one administered by Alabama. Both tests had a confidence interval of 95 percent, meaning that his score could fall between 70 and 83. The two experts, as well as a third one also hired by Smith’s lawyers, reached different conclusions. The state’s expert claimed that Smith’s scores were more indicative of a “learning disability” than an “intellectual disability,” while Smith’s experts pointed to other functional deficits to conclude that he was intellectually disabled.
A federal district court in Alabama weighed all of this evidence, along with other factual details, to conclude that Smith had shown that he had “significantly subaverage intellectual functioning and significant deficits in adaptive behavior” that manifested while he was a child. As a result, the court concluded that he met the constitutional threshold for intellectual disability, barring his execution. The Eleventh Circuit Court of Appeals affirmed the district court’s rulings on the facts of the case.
When the Supreme Court agreed to hear the case last year, it declined to review the specific questions presented by Alabama and instead focused on a different one provided by the Trump Justice Department in a friend-of-the-court brief: “whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.” After oral arguments and briefing, a majority of the justices apparently concluded that the reframing of the case was a mistake.
“The Court is not equipped in this case to provide any meaningful guidance on how courts should assess multiple IQ scores,” Sotomayor wrote in an opinion concurring with the court’s order. With the reframed question, she noted that both Alabama and Smith now agreed in a number of important ways, including that the Eighth Amendment “does not prescribe a single formula for weighing multiple IQ scores” and that Atkins left the “primary role” in developing those standards to the states.
Sotomayor also noted that the court had moved too far afield from what the lower courts had considered and decided, leaving the justices without a firm factual foundation upon which to rule. “Without the benefit of an evidentiary record or decisions below trained on the specific theories now advanced by the parties, this Court rightly concludes that it should not provide more detailed guidance beyond what this Court’s cases have previously said,” she wrote.
Alito, in what can be described as the main dissent, argued that the court should have reached a decision anyway to resolve what he described as “numerous unanswered questions” posed by Atkins. “This case presents one of those questions: How should a court apply a 70-IQ cutoff when a defendant has multiple test scores in the record?” he noted. “As the decisions below demonstrate, our failure to address this recurring question has led to confusion and unsound analysis in lower courts.”
Sotomayor disagreed with Alito’s framing of the stakes. “At the outset, there is no evidence that the lower courts are desperate for guidance; there is no split and neither state courts nor federal courts have expressed substantial confusion over how to assess multiple IQ scores,” she replied. Sotomayor also noted that there was “no reason for this Court to leapfrog the experts, state courts, and federal lower courts to provide conclusive guidance at this level of detail in the first instance.”
Alito’s opinion was joined by Roberts, Thomas, and Gorsuch. But even among the dissenters, there was disagreement. Roberts and Gorsuch declined to join part of Alito’s dissent that concluded the lower courts had “relied on psychologically, statistically, and legally unsound analyses to conclude that Smith’s IQ is 70 or below.” Alito took strong issue with the lower courts’ conclusion that since the lower bound of Smith’s IQ test was below 70, he falls below the standard. This is an unusually strong challenge to a lower court’s factual findings, especially in a highly technical discipline like psychology.
Thomas agreed with Alito in full but, as he often does, felt inclined to write his own dissent laying out his particular views. He argued that Atkins should be “overruled” because, in his view, “nothing in the text or history of the Constitution supports” it. He argued instead that the court should reconcile its precedents with the Eighth Amendment’s “original meaning” and the “common law.”
By abandoning the court’s 1958 ruling in Trop v. Dulles that relied upon “evolving standards of decency,” Thomas would implicitly wipe away the last 70 years of Supreme Court rulings on the Eighth Amendment’s protections. He correctly observed in a footnote that the court has not used Trop in its recent Eighth Amendment cases. But since the court has not directly challenged or overturned it, prior rulings that relied upon it remain intact, including bans on executing minors and on executing people for non-homicide offenses.
Despite his jurisprudential claims, it is hard to avoid the sense that Thomas’s personal views carry the day here. He describes Smith’s crimes in detail, as if it were relevant to the legal analysis. Unlike his colleagues, who all use the term “intellectual disability,” Thomas uses “mental retardation” when describing the conditions at issue here, echoing a broader public embrace of the slur by the American far right. He argues that the rule laid out by Blackstone and other English legal luminaries only applies to a “common-law idiot” and not, in Thomas’s view, to Smith.
Thomas’s colleagues would not go nearly that far—at least, not for now. Alito suggested that he might be inclined to do so if the court does not “clarify” its existing precedents. “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,” he wrote, referring to the intellectual-disability cases.
That zeal for ensuring that executions go forward, unhindered by lower courts or defense attorneys, is characteristic of the Roberts court’s recent approach to the death penalty. In recent years, the Supreme Court has become generally hostile to death penalty litigation from prisoners and defendants, to the point that lawyers supporting its abolition or reduction now often shy away from bringing challenges that could be perceived as undermining American capital punishment. Thursday’s ruling suggests that there is still an outer boundary to the court’s eagerness for executions, no matter how hazy and indistinct it might be at this distance.
