Stephen McAllister is the Solicitor General of Kansas and the E.S. & Tom W. Hampton Distinguished Professor of Law at the University of Kansas School of Law.

If a conservative Justice ultimately replaces Justice Antonin Scalia, it seems unlikely that much, if anything, will change with respect to the Court’s largely established death penalty jurisprudence. Justice Scalia consistently supported the constitutionality of the death penalty as a general principle, relying not least on the Fifth Amendment’s acknowledgement of “capital” offenses, and he typically voted to affirm death sentences in cases that raised Eighth Amendment (and most other types of) challenges. Justice Scalia’s criminal procedure jurisprudence did not always favor the government, however, with the Fourth Amendment, the Confrontation Clause, and the Sixth Amendment right to a jury trial being prime examples of areas where he often sided with criminal defendants. But in capital cases raising Eighth Amendment issues, Justice Scalia generally voted to uphold death sentences.

Early in his tenure Justice Scalia did write an opinion for the Court in Hitchcock v. Dugger, reversing a death sentence for failure to admit any and all non-statutory mitigating evidence, but I suspect he would have said in hindsight that doing so was a misstep by a new Justice not yet completely familiar with the nature of capital litigation and the Court’s jurisprudence in that area. He fairly quickly repudiated – expressly and emphatically – the very principle on which the Hitchcock reversal relied, declaring that because the “individualized sentencing” principle (as it often has been called) found no basis in the Eighth Amendment, he would not apply it in capital cases. Justice Clarence Thomas later joined Justice Scalia in that repudiation, but other conservative Justices have not done so, at least not explicitly, so one can make no more than an educated guess about whether a conservative replacement for Justice Scalia would join Justice Thomas in repudiating what the Court itself has identified as one of two foundational principles in the capital sentencing context. In any event, a majority of the Court has shown no inclination to reconsider or eliminate the “individualized sentencing” principle.

Over the almost thirty years of Justice Scalia’s tenure on the Court, there are numerous examples of Justice Scalia being in a five-Justice majority affirming a death sentence over a four-Justice dissent, as well as numerous instances of Justice Scalia being in dissent when five or more Justices joined to reverse a death sentence. It is safe to say that during Justice Scalia’s lengthy tenure a significant number of cases affirming death sentences would have turned out the opposite if Justice Scalia’s vote were replaced by the vote of a “liberal” Justice. But probably none, or virtually none, would have turned out differently had a different conservative Justice been voting in Justice Scalia’s stead.

Overall, it seems almost certain that if a conservative Justice replaces Justice Scalia, little will change in the Court’s capital cases, either in terms of the “big picture” jurisprudence of the Court, or in terms of the outcomes in particular death penalty cases. There really is not much that a conservative majority could hope or expect to change about death penalty jurisprudence generally. The most significant plausible change would be to overrule the notion of an “individualized sentencing” principle, which always implicates mitigation issues and has given rise to never-ending litigation in capital sentencing proceedings. But, again, there have never been more than two expressed votes to do that even when Justice Scalia was on the Court, and he was one of the two votes.

In another respect, however, there may be a significant difference in at least the discussion at oral arguments in capital cases and the tenor of opinions involving death sentencing issues when Justice Scalia might have been the author. In other words, even if a conservative replacement were to vote exactly like Justice Scalia would have voted, there might be a different atmosphere surrounding the Court’s resolution of capital cases, one likely to be less sharp and less emphatic.

For example, Justice Scalia’s influence in capital cases was evident during oral arguments, where he could demonstrate his particular style of dismissing arguments as incredible and unpersuasive, sometimes in very blunt and almost mocking fashion. Some of the final death sentencing cases in which Justice Scalia participated in oral argument are excellent examples. In Kansas v. Gleason, the Court was reviewing a decision of the Kansas Supreme Court that purported to find Eighth Amendment error in the sentencing-phase jury instructions. Justice Scalia took the Kansas Supreme Court to task, asking “Did the Kansas Supreme court read these [U.S. Supreme Court] cases?” and further opining about the Kansas court that “[t]hey don’t like the death penalty,” even though “Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional.”

The same day, in Kansas v. Carr, there was a question whether two brothers who committed heinous sexual crimes and four murders together should have been sentenced in separate proceedings, or whether it was constitutional to sentence them together in a joint proceeding. Defense counsel argued that some evidence that suggested one brother was the shooter might not have been admitted against that brother if there had not been a joint sentencing proceeding. Incredulous that such evidence could have made any possible difference, Justice Scalia interrupted defense counsel to read the gruesome facts of the crimes at length in a hushed courtroom, and then asked: “You really think that’s the only thing the jury is going to be focused on, is who pulled the trigger? My Lord.” The absence of Justice Scalia during oral arguments in capital cases likely will change the dynamic of those arguments, unless a conservative nominee who is similarly forceful takes his place. Other conservative Justices who tend to vote to uphold death sentences simply are not as vocal or as emphatic during oral argument as Justice Scalia generally was in capital case arguments (and that point is true not just for capital cases, but for oral arguments generally).

Justice Scalia’s style and tone also could show up in death penalty opinions he authored for the Court. Justice Scalia could be quite sharp in his criticism of lower courts when writing for the Court and reversing a decision that purported to find federal constitutional grounds for vacating a death sentence. Justice Scalia’s final opinion for the Court (Kansas v. Carr) is a prime example, and illustrates well both his firm conviction that the death penalty is – as a general principle – constitutional, as well as his typical skepticism about claims of “sentencing error” in capital cases. He strongly criticized the lower court by declaring that “what a state court cannot do is experiment with our Federal Constitution and expect to elude this Court’s review so long as victory goes to the criminal defendant.” Otherwise, state courts would be able “to blame the unpopular death-sentence reprieve of the most horrible criminals upon the Federal Constitution when it is in fact their own doing.” In reversing the Kansas Supreme Court on two separate purported Eighth Amendment rulings, Justice Scalia described the lower court’s reasoning as “beyond the pale,” “the most extravagant speculation,” and “beyond reason.” It is doubtful that any other current Justice would or could deliver a message so clearly and emphatically as Justice Scalia.

Ultimately, a new conservative Justice is unlikely to change the Supreme Court’s capital punishment jurisprudence or the outcome in capital cases in any significant way. It seems unlikely, however, that any new conservative Justice could completely fill Justice Scalia’s shoes in death penalty cases when it comes to vigorous participation in oral argument and eloquent (and sometimes very sharp) opinion-writing.

Posted in Featured, The Court after Scalia

Recommended Citation: Stephen McAllister, The Court after Scalia: Staying the course but losing eloquence, SCOTUSblog (Sep. 1, 2016, 2:11 PM), http://www.scotusblog.com/2016/09/the-court-after-scalia-staying-the-course-but-losing-eloquence/