Four Votes to Midnight

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

Interpreting the U.S. Supreme Court’s long-term trajectory often feels like reading smoke signals in Mandarin, but I gave it a shot after the death-penalty ruling in July. After the Court handed opponents of capital punishment a defeat in Glossip v. Gross, I wrote that Justice Stephen Breyer’s dissent could mean that abolition is closer than the ruling suggests. On Tuesday, Justice Antonin Scalia confirmed some of my suspicions.

In a speech at Rhodes College on Tuesday, Scalia told the audience that he “wouldn’t be surprised” if the Supreme Court abolishes the death penalty. No transcript or audio of his remarks are available, according to BuzzFeed’s Chris Geidner, but the Commercial Appeal’s Jennifer Pignolet livetweeted some of his remarks:

Scalia’s remarks confirm two of my contentions, one spoken and one unspoken. My unspoken contention was that, if given the opportunity, Justices Kagan and Sotomayor would vote to abolish the death penalty. I could have easily been wrong, since neither of them joined Breyer’s landmark dissent alongside Ginsburg. But their strong attacks on it during oral arguments and in their dissent, which including vivid comparisons to burning at the stake, seemed to reflect an underlying discomfort with the practice itself. Scalia’s statement that four of his colleagues would vote to abolish bolsters that argument.

My spoken contention was that Breyer thinks Kennedy’s fifth vote is up for grabs, and with it, the abolition of capital punishment. We could interpret what Scalia’s “wouldn’t be surprised” remark means until the cows come home, but it suggests to me that abolition is at least within the realm of possibility. That would logically suggest to me that Kennedy is on the fence—or, at the very least, that Scalia thinks he could be. Kennedy has played the central role in curtailing the death penalty’s scope over the past fifteen years. Would he be willing to make the final leap?

Again, this is educated Kremlinology at best, so I wanted to outline my thinking and show my work. If you have other interpretations, please send them to me at and I’ll be happy to share them here.

None of this means a court case on the death penalty’s constitutionality is imminent, as Reuters’ Lawrence Hurley explains well here. But if one does reach the Court’s docket, I think death-penalty opponents have a case for cautious optimism.