A quick look at how Justice Kennedy's retirement might impact capital punishment jurisprudence

This new HuffPost piece, headlined "Justice Kennedy’s Retirement Is A Setback For Death Row Inmates," provides a quick account of one area of sentencing jurisprudence likely to be impacted considerably by a coming SCOTUS transition. Here are excerpts:

President Donald Trump’s likely choice of a deeply conservative justice to replace Anthony Kennedy on the Supreme Court could have a significant impact on death penalty cases, experts say.

“Death row inmates will find it substantially more difficult to prevail,” said John Blume, a law professor at Cornell Law School and director of the Cornell Death Penalty Project. “Justice Kennedy was conservative on criminal justice and capital punishment matters, but most or all of the names being bandied about as his replacement are most likely going to be more to much more conservative.”

Though Kennedy was a reliable vote in allowing executions to proceed in cases involving the methods of execution, he was the only Republican appointee who frequently aligned himself with the more liberal justices in cases that limited the circumstances in which states could impose capital punishment.  “Kennedy was often the deciding vote in [death penalty] cases, sometimes on one side, sometimes the other,” David Menschel, a criminal defense attorney and activist, told HuffPost.  “Now I would expect SCOTUS to show even more complete deference to the states and to allow executions to proceed with little concern whether states are acting lawfully.”

Kennedy was the key swing vote in the court’s 2005 decision to prohibit the execution of juvenile defendants. He was the deciding vote in the 2008 decision that barred the use of the death penalty in cases where a defendant raped, but did not kill, a child.  And his vote was key in the 2014 ruling that established that a Florida law that set a strict IQ cutoff for determining intellectual disability in capital punishment cases was unconstitutional.  The Florida law, Kennedy wrote for the majority, “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”...

“The most profound effect is likely to involve those death penalty cases that involve the application of the evolving standards doctrine,” said Robert Dunham of the Death Penalty Information Center, a group doesn’t take a position for or against death penalty, but has been critical of how it has been administered.  The “evolving standards of decency” doctrine Dunham was referring to was coined by Chief Justice Earl Warren in a 1958 case in which the court recognized that the interpretation of what constitutes fair and cruel punishment is not static under the Eighth Amendment.

“In essence, the Eighth Amendment meant whatever Justice Kennedy thought it meant,” Dunham said.  “Now, it will mean whatever Chief Justice [John] Roberts thinks it means. That’s where I think it will have the most significant impact.”

The final quote by Robert Dunham here rightly flags that Chief Justice Roberts in now likely to be the closest thing to a swing vote in capital cases (and maybe in an array of criminal cases). The Chief has voted along with Justice Kennedy and the liberal justices in more than a few capital cases (see DPIC case list here) as well as one some other criminal justice issues, and his criminal jurisprudence has just become a lot more important to a lot more defendants and their lawyers.

Prior posts on Justice Kennedy's retirement (including one from MLP&R):

• Justice Anthony Kennedy has announced his retirement ... which means a lot for the future of sentencing jurisprudence and so much more 
• Just a few Justice Kennedy sentencing jurisprudence highlights
• "Betting Odds for Next Supreme Court Justice: Who Will Replace Anthony Kennedy?"
• With Justice Kennedy now retiring and precedents being reversed, is it time for marijuana advocates to urge SCOTUS to reconsider Raich?