The Supreme Court's new term begins October 5, with an
unusual focus on Eighth Amendment cases to be considered for review, a docket foreshadowed at the end of the last term.
Last June, the Supreme Court's Term ended not with the same-sex marriage opinions (announced three days earlier), but rather with Justice Stephen Breyer's surprising and comprehensive opinion (joined by Justice Ruth Bader Ginsburg) in Glossip v. Gross, which announced that both Justices now "believe it highly likely that the death penalty violates the Eighth Amendment." Justice Antonin Scalia responded that if the Court were to grant merits review on that question, then he correspondingly "would ask that counsel also brief whether" longstanding Eighth Amendment precedents, "beginning with Trop [v. Dulles (1958)], should be overruled." Meanwhile, in the Glossip argument, Justice Samuel Alito had candidly described the many aspects of capital litigation as "guerilla war against the death penalty," while Justices Sonia Sotomayor and Elena Kagan had remarked that the Court was being asked to approve an execution method akin to "being burned alive." Needless to say, the Justices are deeply divided about the meaning and application of the Eighth Amendment’s "cruel and unusual punishment" clause.
Which makes it all the more interesting that in the Term that will open on October 5, five of the thirty-four cases in which the Court has granted review involve Eighth Amendment issues, four of them the death penalty. All five cases will be argued in the first three argument weeks of the Term (four in October, and the fifth on November 2). One can expect that the smoldering embers of the Glossip debate will be quickly reignited. This Term may be the biggest Eighth Amendment term in forty years (since Gregg v. Georgia in 1976).
SCOTUSblog's Rory Little then goes on to outline the five cases, concluding with the preview to "stay tuned for what may be the most dramatic Supreme Court discussion of Eighth Amendment values since its re-affirmation of capital punishment statutes long before the Justices' law clerks were born."
It doesn't seem likely, however, that the justices will rule on the constitutionality of the death penalty other court observers say. That's tea-leaf reading from the refusal of the court to hear a death penalty stay in mid-July and another last month. Neither Breyer nor Ginsburg publicly dissented in those cases, a sign that they were "not quite in the category of adamant opposition in all cases," at least in the eyes of Kent Scheiddeger, legal director of the pro-death penalty Criminal Justice Legal Foundation. The court, however, has the capacity to surprise, and the prominence of Eighth Amendment cases this term makes the issue worth watching.