Injury Laws: Why the late-career conversions at the Supreme Court on the death penalty?

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In a dissenting opinion filed Monday in Glossip v. Gross, Justices Breyer and Ginsburg suggested that they have decided, after decades on the Court, that the death penalty is categorically unconstitutional. Other Justices have done the same thing. Justices Stevens and Blackmun also decided, after decades on the Supreme Court, that the death penalty was unconstitutional. Over at Dorf on Law, Michael Dorf asks what might explain this late career conversion. Why would so many Justices change their minds, only after serving on the Court for decades, about this one issue?

I have a theory on that. It’s pure speculation, to be clear. But while we’re speculating, here’s my guess: It’s the cumulative effect of the workload.

Many people think the lives of Supreme Court Justices are filled with weighty constitutional debates. But like most employees, the Justices spend some time at their jobs on stuff that they would probably not want to spend time on if they had the choice. One of those areas is capital punishment. The Justices spend a surprising amount of their energy on capital litigation. For a country of over 300 million people, there aren’t many actual executions — these days, only about forty a year. But the Justices are deeply involved in a surprising amount of capital litigation.

Think about how the death penalty operates from the perspective of a Supreme Court Justice. The Justices see most capital cases multiple times. First, they see cases on direct review after conviction. Then at the habeas stage. Then over second habeas petitions. Then over claims that the condemned is not sane enough or intelligent enough to be executed. Then over claims that the method of execution is not permitted. Then over whatever new claim the capital defense bar has come up with recently. And in almost every planned execution in the U.S. — around one a week — there will be a last-minute appeal to the Justices to stop the execution sometimes filed just hours before it happens.

The cases are gruesome. It’s not like a fun First Amendment issue; there’s no license plate jurisprudence to ponder here. Instead, every case involves a murder. And often the facts are shocking or brutal.

The Justices have to vote on all of these cases. And they take the cases really seriously. All capital cases get specially flagged. Law clerks know to take them extra seriously. The Court has a special employee in the Clerk’s Office just for capital litigation. And the Justices have to deal with these cases whenever they come up. They might be enjoying a nice vacation, or they might be at the opera. But if a capital petition comes in, and an execution is scheduled, the Court must rule. All the Justices have to vote and do so very quickly.

So here’s my theory: I suspect that the reason several Justices have late-career conversions against the death penalty is that decades of deciding death penalty cases becomes taxing and depressing. If you’re a Justice who favors the death penalty, it’s a grim but necessary part of the job. If anything, you’re probably frustrated that so much attention end up being spent on such a small part of the criminal justice system. But if you’re a Justice who doubts or opposes the death penalty on a personal level, so much work on capital cases, year in and year out, never ending, constantly coming your way — it probably begins to wear on you. It never seems to stop. And there is no way to get away from it.

Except there is a way. It’s a really simple way. All you need to do is get four other Justices to agree with you to end the death penalty. If you take just one of these cases and can get four other votes, you can immediately and permanently end the part of your job that you dislike the most.

This is just speculation, as I said. But my guess is that this has a role in explaining the late-career conversions. It’s not that Justices who have been on the Court for 20+ years suddenly stumble across new arguments that the death penalty is unconstitutional. They don’t. It’s that some Justices are sick and tired of having to spend so much of their lives on depressing death penalty cases. Consciously or not, I suspect that this has an influence on the late-career conversions.