Speculating about many SCOTUS relists in Eighth Amendment capital case concerning intellectual disability

Ian Millhiser has this interesting new Vox piece discussing the oft-relisted Supreme Court case of Hamm v. Smith under the headline "The strange case that the Supreme Court keeps refusing to decide: A mysterious Supreme Court case could change everything about criminal punishment." I recommend the lengthy piece in full, and here is how it gets started (with links from the original):

For more than a year, Joseph Clifton Smith, a man who says he is intellectually disabled, has sat on death row, waiting to find out if the Supreme Court will greenlight his execution.  Smith’s case, known as Hamm v. Smith, first arrived on the Court’s doorstep in August 2023.  Since then, the justices have met more than two dozen times to decide what to do about the case, and each time they’ve put the decision off until a future meeting.

No one outside of the Court can know for sure why the justices keep delaying, but if you follow the Court’s Eighth Amendment cases closely, it’s easy to see how the Hamm case could open up all kinds of internal rifts among the justices.

The Eighth Amendment, which has a vague ban on “cruel and unusual punishments,” is at the center of the Hamm case because, for decades, the Court has held this amendment forbids executions of intellectually disabled offenders (and offenders who commit a crime while they are juveniles). The idea is that both groups have diminished mental capacity, at least as compared to non-disabled adults, and thus bear less moral responsibility even for homicide crimes.

That idea, however, has long been contested by the Court’s various ideological factions, and the Hamm case potentially reopens up all of the Court’s issues with the amendment at once. Indeed, in the worst-case scenario for criminal defendants, the justices could potentially overrule more than 60 years of precedents protecting against excessive punishments.

This Vox piece goes on to highlight how the Hamm case potentially highlights how modern Eighth Amendment precendents does not jibe with more originalist views of the Cruel and Unusual Punishments clause.  Here is part of Millhiser's explanation:

[I]t’s possible that the Court is fighting over what to do with the Hamm case because many of the justices want a wholesale revolution in Eighth Amendment law.

Beginning in the mid-20th century, the Supreme Court maintained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Thus, as a particular method of punishment grew less common, the Court was increasingly likely to declare it cruel and unusual in violation of the Constitution.

At least some members of the Court’s Republican majority, however, have suggested that this “evolving standards of decency” framework should be abandoned.  In Bucklew v. Precythe (2019), the Court considered whether states could use execution methods that risked causing the dying inmate a great deal of pain. Justice Neil Gorsuch’s majority opinion, which held that potentially painful methods of execution are allowed, seems to exist in a completely different universe than the Court’s Eighth Amendment cases that look to evolving standards.

While the Court’s earlier opinions ask whether a particular form of punishment has fallen out of favor today, Gorsuch asked whether a method of punishment was out of favor at the time of the founding....  What makes Bucklew confusing, however, is that it didn’t explicitly overrule any of the previous decisions applying the evolving standards framework.  So it’s unclear whether all five of the justices who joined that opinion share a desire to blow up more than a half-century of law....  Bucklew looms like a vulture over any cruel and unusual punishment case heard by the Court, as it suggests that the Republican justices may hit the reset button on all of its Eighth Amendment precedents at any time.

Thanks to some helpful readers, I have been keeping an eye on Hamm v. Smith, and Millhiser seems right that something notable is afoot behind closed SCOTUS doors.  My uninformed guess is that a few Justices, most likely Justice Alito, Gorsuch and/or Thomas, may be actively seeking to encourage their colleagues to take up the case as an opportunity to review and recast Eighth Amendment, but they are having a hard time getting a fourth vote for cert. And that challenge may reflect not only the concern other Justices may have about overturning modern Eighth Amendment precedents, but also the fact that a rigorous approach to Eighth Amendment originalism could possibly expand some rights against excessive punishments (according to some academics)