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Will Jackson be the Supreme Court’s next great opponent of capital punishment?

ketanji brown jackson and john roberts stand side by side with large marble columns in background

When Justice Stephen Breyer retired over the summer, the Supreme Court lost its loudest dissenting voice on an issue that makes up a large yet overlooked chunk of the court’s docket: the death penalty.

Early in his career, Breyer accepted the constitutionality of capital punishment. But his time on the court, in which he reviewed countless appeals from prisoners facing executions, convinced him otherwise. His 2015 dissent in Glossip v. Gross stands as a preeminent critique of capital punishment in America; in it, Breyer concluded that the death penalty, as currently administered, likely constitutes cruel and unusual punishment. And Breyer spent his final year on the court echoing that point.

Breyer’s uncompromising view on this issue was out of step with his typically moderate, consensus-minded jurisprudence. On the death penalty, he was arguably to the left of Justices Sonia Sotomayor and Elena Kagan, each of whom has written important dissents in death-penalty cases, but neither of whom has expressly questioned its constitutionality. Breyer more closely resembled the justice he replaced: Harry Blackmun, who like Breyer evolved from accepting the death penalty to rejecting it outright, culminating in his famous late-career declaration that he “no longer shall tinker with the machinery of death.”

The “death docket” has long been an essential part of the Supreme Court’s work. But it receives little attention because few capital cases ever get oral arguments or formal opinions. Instead, they come to the court on an emergency basis, often days or even hours before an execution, as prisoners bring final appeals or states seek to lift stays that have been issued by lower courts. The current Supreme Court — perhaps the most pro-death-penalty court in generations — nearly always sides with the states. Last month, the court greenlighted six executions in five states.

With Breyer gone, who will emerge as the left’s chief critic of capital punishment? It may end up being his successor, Justice Ketanji Brown Jackson.

Jackson’s views on the death penalty were largely unknown when she was elevated to the high court. In her nine years as a lower-court judge, she never handled a death-penalty case, and she said little about the issue in her nomination hearings. But Jackson’s early work as a justice hints that she may take up Breyer’s mantle, just as Breyer took up Blackmun’s.

Jackson has written two opinions so far (including one issued just last week). Both of them were dissents in capital cases. The opinions are short and fact-bound and do not weigh in on the constitutionality of capital punishment. Nevertheless, they may offer a glimpse at how Jackson — a former federal public defender and the only sitting justice with significant criminal-defense experience — will approach the issue.

“I see her dissents in death-penalty cases as a reflection of a judicial philosophy that’s informed by her extensive experience in the criminal legal system,” said Ngozi Ndulue, the deputy director of the Death Penalty Information Center. “The cases in which she dissented are ones where there are significant due process and overall fairness issues.”

Jackson’s first opinion came on Nov. 7, when she dissented from the court’s decision not to hear the case of Davel Chinn, an Ohio man who was sentenced to death for a 1989 murder during an attempted robbery. Chinn showed that prosecutors withheld evidence that undermined the credibility of the state’s key witness, but a lower court concluded that the evidence would not have made a difference, and a majority of the Supreme Court declined to reconsider that ruling.

“Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial,” Jackson wrote, she would have revived Chinn’s claim. Sotomayor joined her dissent.

Jackson’s second Supreme Court opinion came in the case of Kevin Johnson, a Black man from Missouri who was convicted of killing a white police officer in 2005. Under a recently enacted state law, a special prosecutor reviewed the validity of Johnson’s conviction and found evidence of egregious racism by Johnson’s original prosecutor (whose own father was a white police officer killed by a Black man). According to a court filing from the special prosecutor last month, the original prosecutor “consistently made race-influenced decisions in his handling of capital homicides,” including seeking the death sentence against Black defendants but not white ones. The special prosecutor urged Missouri courts to halt Johnson’s execution. Despite these developments, the Missouri courts did not give Johnson a hearing as required under state law.

With his execution imminent, Johnson sought an emergency stay from the Supreme Court on Tuesday. The court quickly rejected his request in a terse order. Jackson and Sotomayor noted that they disagreed with the court’s order but said nothing more at the time. Later that day, Missouri executed Johnson by lethal injection.

Then, on Wednesday, Jackson did something unusual: She issued a four-page dissent explaining her reasoning. (Again, she was joined by Sotomayor.) Missouri’s failure to give Johnson the hearing that state law required was “so fundamentally flawed, and so at odds with basic due process principles,” that it likely violated Johnson’s federal constitutional rights, Jackson wrote.

Jackson was under no obligation to voice her dissent. In death-penalty appeals and other emergency matters on the shadow docket, the justices typically do not explain themselves. The majority tends to rule in brief, one-line orders that use legal jargon to grant or deny relief, and dissenting justices tend to note their disagreement without further elaboration (if they even publicize their dissents at all). The last time any justice issued a post-hoc dissent from an order was in 2019.

It is too early to say whether Jackson will come to express serious institutional doubts about the death penalty, just as her two predecessors did. For now, her decision to write her first two opinions in the Chinn and Johnson cases suggests a more modest priority: As long as the court allows the machinery of death to continue operating, at least a few words of explanation are in order.

This column was originally published on Dec. 1 in National Journal and is owned by and licensed from National Journal Group LLC.

Recommended Citation: James Romoser, Will Jackson be the Supreme Court’s next great opponent of capital punishment?, SCOTUSblog (Dec. 5, 2022, 8:30 AM),