The Roberts Court seems to be methodically scaling back the excesses of the Burger Courts. But one area that has not yet been revisited is the death penalty. Despite the Court imposing "history and tradition" tests for other aspects of the Bill of Rights, the Eighth Amendment still follows the "evolving standards of decency" standard. This sort of living constitutionalism is an anathema to the notion of a written Constitution. One of the most egregious manifestations of this standard was Atkins v. Virginia. This standard was egregiously wrong and has proven impossible to implement. And murderers with purported intellectual disabilities cannot plausibly rely on this or any other Supreme Court precedent. Yet Atkins remains. Just last month the Court DIG'd Hamm v. Smith, I suspect, because Justices Kavanaugh and Barrett didn't want to decide it. I suspect there will be leaks from the Court to make sense of this flip.
The Court needs to start over on the Eighth Amendment. Or in today's lingo, they need a reboot. My new essay in Civitas Outlook is titled, "The Roberts Court Needs To Reboot The Machinery Of Death."
Here is the introduction:
