The Executioner’s Swan Song?

The Atlantic Magazine, October 2005

Is it just my imagination, or has there been a palpable change recently in the Supreme Court’s approach to death-penalty cases?

The Court has without question shifted gears on capital punishment. For years the justices turned a willfully blind eye to the claims of those on death row. They created onerous procedural obstacles to federal review of state convictions. They tolerated the most grotesque incompetence by counsel in capital cases, along with alarming disparities in the way the death penalty was implemented. They allowed executions not only of the mentally retarded but of the seriously mentally ill. In short, the message from the Court to death-penalty states was simple: Godspeed.

But lately the Court has struck a very different tone; one question raised by John Roberts’s nomination is whether this trend will last. In two particularly high-profile cases, one in 2002 and the other last spring, it rejected the death penalty first for the mentally retarded and then for juvenile offenders; the justices had upheld it in both situations as recently as 1989. In other cases the justices have also tightened the rules concerning apparent efforts by prosecutors to strike African-Americans from capital juries. They have made clear that juries, not judges, must make death judgments. They have beaten up on Texas—the nation’s unrivaled leader in death-penalty activity—for cases involving flawed jury instructions and prosecutorial misbehavior. And they have sought to rein in certain lower courts that have reviewed death cases with particular leniency. It has almost seemed to be a different Court.

Why? It was the same group of justices until now.

In large measure the shift emanates from a change of heart in what were the Court’s two swing justices: Anthony Kennedy and the soon-to-retire Sandra Day O’Connor. Once solidly part of the bloc that deferred to state convictions and procedures, both evidently had second thoughts. Back in 1991, for example, O’Connor wrote the Court opinion refusing to even consider the case of Roger Keith Coleman, a Virginia death-row inmate with particularly strong claims of innocence. Coleman had lost his chance to appeal when his lawyers missed a state-court filing deadline by a single day. O’Connor began the opinion, “This is a case about federalism.” A decade later, however, she was singing a different tune. “Serious questions are being raised about whether the death penalty is being fairly administered in this country,” she said in a 2001 speech in Minnesota. “Minnesota doesn’t have it, and you must breathe a big sigh of relief every day.”