Would a Prez Hillary Clinton lead to the judicial abolition of the death penalty in the US?

The question in the title of this post is prompted by this notable new opinion piece by Scott Lemieux headlined "How a President Hillary Clinton could help end the death penalty." The whole piece is worth a full read, and here are excerpts:

Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, in a separate dissent [in the Supreme Court's recent Glossip ruling] concluded: "I believe it highly likely that the death penalty violates the Eighth Amendment." Breyer's dissent is important, leading some to even conclude that the Supreme Court might actually rule that way in the near future. But this probably won't happen unless a Democratic president replaces one of the Republican-appointed justices on the court, which is another reason the Supreme Court will be a top issue in the 2016 presidential race.

A majority of the Supreme Court has never held that the death penalty is categorically unconstitutional — indeed, there have never been more than two justices at any one time who supported this view. In the 1972 case Furman v. Georgia, the Supreme Court suspended executions, but three of the five justices in the majority held that the death penalty would be constitutional if applied fairly. Only two justices — William Brennan and Thurgood Marshall — held that the death penalty was always unconstitutional, a position they held for the rest of their tenures.

Two other justices, Harry Blackmun and John Paul Stevens, wrote opinions shortly before their retirement suggesting that the death penalty might be unconstitutional. But otherwise every justice has supported the compromise the court reached in 1976: The death penalty is constitutional if applied in a more fair and rational manner. It is possible that Breyer's opinion will be seen as a fraying of this compromise and a crucial step towards a ruling that the death penalty is unconstitutional. But if so, it is likely to be a process that plays out over a fairly long period.

At Slate, Robert J. Smith gives the most optimistic reading of Breyer's dissent from the perspective of death penalty opponents, suggesting that there might be five votes on the current court to abolish the death penalty. His argument is superficially persuasive ...[but] fails to withstand scrutiny.... Glossip itself provides powerful evidence against this possibility. Among other things, Justice Samuel Alito's majority opinion represents a sort of obscene gesture to death penalty opponents: "If you use legal methods to prevent states from carrying out a particular form of execution, it therefore has the right to carry out less humane ones." This is nothing less than a justification for torture. It is very hard to imagine someone who opposes the death penalty in principle joining this opinion, which is exactly what Kennedy did.

It is thus vanishingly unlikely that this court will hold the death penalty unconstitutional. The interesting question is what might happen should a justice nominated by a Democrat become the median vote of the court. In a recent paper, the University of Maryland legal scholar Mark Graber suggests that we are about to see a much more polarized Supreme Court that, rather than hewing towards centrist opinions, swings well to the left or right depending on who has the fifth vote.

The death penalty is one area where this may be most evident. Unless popular opinion shifts strongly in favor of the death penalty, Breyer's opinion may very well reflect the default position of Democratic nominees, even the most conservative ones. If President Hillary Clinton can replace one of the Republican nominees on the court, we could ultimately see a decision declaring that the death penalty violates the Eight Amendment's ban on cruel and unusual punishments.

But there's a dark side to the polarized court from the perspective of death penalty opponents. If President Scott Walker or Marco Rubio replaces Justice Ginsburg and/or Breyer, states might aggressively expand the death penalty to encompass homicides committed by minors or the sexual assault of children — and these laws would likely be upheld.

Breyer's dissent does not reflect a court that is going to rule the death penalty unconstitutional in the short term. But it does suggest that it is a medium-term possibility — and that the stakes of future presidential elections are about to get even higher, with control of the median vote of the Supreme Court accruing a greater policy impact than it's ever had.

Prior related post:

• Despite Glossip, hope for judicial abolition of the death penalty endures