Justice Kennedy: His Departure from the Court and Possible Consequences for Capital Cases

Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court on June 27, 2018, and stepped down effective July 31, 2018. Appointed by Ronald Reagan in 1988, Justice Kennedy served for years as the key swing vote in many of the Court’s most controversial cases—including those regarding criminal justice and the death penalty. Although a lifelong Republican, Justice Kennedy was known for joining with the Court’s “liberal” wing in cases that categorically banned use of the death penalty for certain groups such as juveniles and intellectually disabled persons. His departure from the Court and replacement by Brett Kavanaugh could have a significant impact on the further development of the Eighth Amendment jurisprudence established by Justice Kennedy.

Kennedy as Circuit Judge

Prior to his appointment to the U.S. Supreme Court, Kennedy served on the United States Court of Appeals for the Ninth Circuit, where he wrote the majority opinion in Spain v. Procunier, 600 F.2d 189 (1979), a case that challenged prison conditions and practices at San Quentin. In a ruling that found primarily in favor of the prisoners, Kennedy upheld the district court’s lengthy findings that the guards’ regular use of tear-gas and painful restraints violated the prisoners’ constitutional rights. Kennedy wrote that the Eighth Amendment is “a fundamental premise that prisoners are not to be treated as less than human beings,” and that the lower court correctly took into account “current and enlightened scientific opinion” in issuing its findings on the case. While he did not go so far as to say that the Eighth Amendment would bar certain restrictive or even painful correctional practices in all instances, in response to the State’s argument that the court should not interfere in prison administrative practices, he was careful to point out that “the whole point of the [eighth] amendment is to protect persons convicted of crimes,” and therefore, “mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary.”

The Supreme Court and evolving standards of decency

After joining the Supreme Court, Justice Kennedy continued to look to modern developments in science and social science to inform his opinions. This perspective played a critical role in shaping how the Court’s “evolving standards of decency” doctrine, which recognizes the Eighth Amendment standard as one that can change over time, applies to capital punishment. In Roper v. Simmons, 543 U.S. 551 (2005), which outlawed the death penalty for crimes committed before age eighteen, Justice Kennedy observed that the practice of executing juveniles was infrequent and prohibited in most states, as well as in most other countries around the world, and he drew parallels to the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), which ended the death penalty for the intellectually disabled. In his opinion in Roper, he cited to psychology texts and appended charts that included state information about the juvenile death penalty as compared with the minimum voting age, minimum age for jury service, and minimum age for marriage. Writing for a 5-4 majority of the Court, he found that the execution of individuals for crimes committed under the age of 18 is prohibited by the Eighth Amendment.

A few years later, Justice Kennedy wrote for the majority in a 5-4 decision holding that non-homicide offenses could not be punished with the death penalty. He noted that in past Eighth Amendment cases, “the Court has been guided by ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.’” Kennedy v. Louisiana, 554 U.S. 407 (2008).  Looking to those sources as well as the Court’s prior decisions, Kennedy concluded that the Constitution requires that the death penalty be reserved “at this stage of evolving standards” for crimes that involve the death of the victim.

Justice Kennedy again wrote for the majority in Hall v. Florida, 134 S. Ct. 1986 (2014), a case evaluating Florida’s method for assessing whether a criminal defendant is intellectually disabled and therefore ineligible for the death penalty. Justice Kennedy found that Florida’s method for determining intellectual disability—which applied a “hard cutoff” to IQ scores and failed to account for the standard error of measurement—violated the Eighth Amendment. Using a similar analytical framework as he had used in prior Eighth Amendment challenges, he concluded that “[t]he Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be. This is to affirm that the Nation’s constant, unyielding purpose must be to transmit the Constitution so that its precepts and guarantees retain their meaning and force.”

Justice Kavanaugh and the future of Eighth Amendment death penalty jurisprudence

With Justice Kavanaugh’s appointment to the seat on the Court vacated by Justice Kennedy, there is a great deal of uncertainty about the future of the Court’s Eighth Amendment death penalty jurisprudence. Before joining the Supreme Court, Justice Kavanaugh sat on the U.S. Court of Appeals for the District of Columbia Circuit, which hears relatively few cases involving the death penalty. As a circuit judge, Kavanaugh did author or join opinions upholding the rights of a criminal defendant in several cases. In one of those, United States v. Nwoye, 824 F.3d 1129 (2016), he ruled that defendant’s counsel were ineffective for failing to introduce expert evidence concerning battered woman syndrome to support the introduction of a duress jury instruction at trial. In that opinion, he wrote extensively about the scientific support for battered woman syndrome and found the defendant had been prejudiced by her attorney’s failure to introduce such evidence to support her coercion defense.

One of the first tests of Justice Kavanaugh’s approach to Eighth Amendment jurisprudence may come this fall, as the Court considers a petition for certiorari in the case of Bobby Moore. When Mr. Moore’s case reached the Court during the 2016 term, a 5-4 majority of the Justices, with Kennedy again providing a crucial fifth vote, held that the Texas courts were using an unconstitutional method of assessing intellectual disability in death penalty cases. Consistent with the analysis used by Justice Kennedy in Hall and other Eighth Amendment death penalty challenges, the Court found in Moore that the Texas courts were assessing intellectual disability based on inaccurate lay stereotypes and contrary to current scientific understanding. On remand from the Court’s decision, the state attorney general conceded that Mr. Moore is intellectually disabled. Even with the high court’s decision and the parties now in agreement on the question of disability, however, the Texas Court of Criminal Appeals again found that Mr. Moore did not satisfy the test for intellectual disability and upheld his death sentence. On October 4, 2018, Mr. Moore’s pro bono counsel from Skadden Arps filed a new petition with the Supreme Court requesting that it again take up the case or simply grant summary reversal based on the 2016 decision. That petition is currently pending consideration by the justices, including Justice Kavanaugh, and the outcome may provide hints about the future path of the Eighth Amendment framework laid down by Justice Kennedy.