Why? It was the same group of justices until now.
In large measure the shift emanates from a change of heart in what were the Court's two swing justices: Anthony Kennedy and the soon-to-retire Sandra Day O'Connor. Once solidly part of the bloc that deferred to state convictions and procedures, both evidently had second thoughts. Back in 1991, for example, O'Connor wrote the Court opinion refusing to even consider the case of Roger Keith Coleman, a Virginia death-row inmate with particularly strong claims of innocence. Coleman had lost his chance to appeal when his lawyers missed a state-court filing deadline by a single day. O'Connor began the opinion, "This is a case about federalism." A decade later, however, she was singing a different tune. "Serious questions are being raised about whether the death penalty is being fairly administered in this country," she said in a 2001 speech in Minnesota. "Minnesota doesn't have it, and you must breathe a big sigh of relief every day."
Kennedy's shift has been just as dramatic. In 1989, for example, Kennedy signed Justice Antonin Scalia's opinion upholding the death penalty for people who committed their offenses as juveniles. This year he wrote the opinion striking down the juvenile death penalty, and in doing so he explicitly repudiated several of the methodological premises of the Scalia opinion he had signed.
The attitudinal shift on the part of Kennedy and O'Connor—two of the less rigidly principled justices in recent years—is hardly a surprise. As DNA exonerated growing numbers of prisoners through the 1990s, the public grew more skeptical toward capital punishment in general, realizing that even when juries are sure of a person's guilt, they are sometimes dead wrong. Although polls still show majority support for the death penalty, that support is shrinking. Juries are handing down fewer death sentences. Executions countrywide, after reaching a modern-day high of ninety-eight in 1999, declined to fifty-nine last year. Judges are not immune from the anxieties that have led to these trends. It would actually be surprising if no Supreme Court justice had rethought his or her approach in light of what we now know about capital punishment.
So is the Court getting ready to strike down the death penalty once and for all?
Almost certainly not. And for the Court's reticence on this point, foes of the death penalty (of which I am one) should, paradoxically, count themselves lucky. The justices went down the abolition road once before. In their ill-fated 1972 decision in Furman v. Georgia—which came down at a time when capital punishment was on the decline anyway—they effectively struck down the death-penalty statutes of every state in the country that had them. The intense public reaction against the decision provoked many states to rewrite their capital-punishment laws to comply with the Court's new standards—much as the current backlash against judicially mandated recognition for gay marriage is prompting state constitutional amendments that limit marriage to heterosexual couples. Within just a few years the Court allowed these new laws to go into effect: executions began again—and then skyrocketed, from one in 1977 to twenty-five in 1987 to seventy-four in 1997. By denying the public the option of a penalty that, although disfavored by elites, was supported—then as now—by much of the polity at large, the courts intensified public commitment to it. With capital punishment once again on the wane, justices uncomfortable with it would be deeply foolish to repeat that mistake. Even the Court's liberal flank seems to understand this.
So is the new judicial scrutiny in capital cases just window dressing?