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December 10, 2020

Is the unanimous SCOTUS ruling in Briggs notably kind to the "evolving standards" approach to the Eighth Amendment?

I noted in this post the Supreme Court's unanimous ruling this morning in US v. Briggs, No. 19-108 (S. Ct. Dec. 10, 2020) (available here), which fundamentally concerned an issue of statutory interpretation.  But the Eighth Amendment was part of the fabric of the statutory debate, and I was struck by how the opinion by Justice Alito for the full Court — save Justice Barrett, who was not yet on the Court by the time of oral argument — discussed how the Eighth Amendment is interpreted in these two passages:

This Court has held that the Eighth Amendment incorporates “‘evolving standards of decency.’” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion); emphasis added).  Thus, even if we were to hold that rape could be punished by death in the military context, the evolving-standards test could later lead to a different result and thus a different statute of limitations at some point in the future.  Such evolution has been held to have occurred on a number of past occasions.  Compare Atkins v. Virginia, 536 U. S. 304, 321 (2002) (Eighth Amendment prohibits death penalty for defendant described as mentally retarded), with Penry v. Lynaugh, 492 U.S. 302, 340 (1989) (Eighth Amendment permits death penalty for such a defendant); compare also Roper v. Simmons, 543 U.S. 551, 574–575 (2005) (Eighth Amendment prohibits death penalty for crime committed by person under 18 years of age), with Stanford v. Kentucky, 492 U. S. 361, 380 (1989) (Eighth Amendment permits death penalty for defendants who are at least 16 years of age)....

As noted, in deciding whether the Eighth Amendment permits a death sentence for a particular category of offenses or offenders, the Court has looked to evolving societal standards of decency and has also rendered its own independent judgment about whether a death sentence would aptly serve the recognized purposes of criminal punishment in certain categories of cases. See Kennedy, 554 U.S., at 419–421, 441–446; Roper, 543 U.S., at 561, 571–575; Atkins, 536 U.S., at 318–321.  Some Justices have eschewed aspects of those approaches and have looked instead to the original understanding of the Eighth Amendment.  See, e.g., Graham v. Florida, 560 U.S. 48, 99–102 (2010) (THOMAS, J., dissenting); Atkins, 536 U. S., at 348–349 (Scalia, J., dissenting); Thompson v. Oklahoma, 487 U.S. 815, 864, 872–873 (1988) (same); cf. Glossip v. Gross, 576 U.S. 863, 894, 898–899 (2015) (Scalia, J., concurring).  But under either method, the inquiry is quite different from the one that a lawmaker might make in fixing a statute of limitations.

This accounting of Eighth Amendment interpretation in Briggs is certainly meant to be just descriptive, as it notes how "the Court has" approached Eighth Amendment interpretation and how some Justices " have eschewed aspects of those approaches and have looked instead to the original understanding of the Eighth Amendment."   Nevertheless, this discussion of the "evolving-standards test" still struck me as fairly "kind" to a "living Constitution" vision of the Eighth Amendment in a unanimous Court ruling circa 2020.  Though I am likely reading way too much into these passages, I will be eager in future writings to have a fresh 2020 citation for the proposition that the Supreme Court has indicated that courts are look "to evolving societal standards of decency" when interpreting the Eighth Amendment.  United States v. Biggs, No. 19-108, slip op. at 8 (S. Ct. Dec. 10, 2020).  And, I will also like to be able to say that, as the Supreme Court has clearly explained , "this evolving-standards test could later lead to a different result" under the Eighth Amendment even when a punishment has previous been upheld as constitutional.  Id. at slip op. 6-7.

December 10, 2020 at 12:38 PM | Permalink


I was certainly surprised at the approving tone of that language in an opinion from Alito.

Posted by: Soronel Haetir | Dec 10, 2020 12:50:21 PM

I am not sure that I would read too much into the tone. I think the tone reflects that this is a unanimous opinion with the Eighth Amendment being a side issue. So both sides of the debate are respected as representing the view of some justices with none of the thumb on the scale type of comments that could have caused some of the justices to be unable to join the opinion.

I think Jones is more likely to have an actual clash over the proper standard to be applied in Eighth Amendment cases.

Posted by: tmm | Dec 10, 2020 1:04:59 PM

I agree 300% that Jones is the big Eighth Amendment case to watch, tmm, and I also agree that these passages do not really tell us where the Eighth Amendment may be headed. But I am thinking --- worrying? --- that Jones may be a (deeply?) split opinion that may not provide lower courts much clear guidance on how the Eighth Amendment ought to be approached as a general matter. Whereas Briggs now explains, as a general matter, that the Supreme Court has "held that the Eighth Amendment incorporates “‘evolving standards of decency.’”

Posted by: Doug B. | Dec 10, 2020 2:11:16 PM

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