As in many other areas of the law, Justice Anthony Kennedy often provided the key fifth vote in death penalty cases during his three decades on the Supreme Court.
Swinging to the right, Kennedy was a frequent supporter of restrictions on the availability of federal habeas review of capital cases, a skeptic of claims challenging the constitutionality of lethal injection and a relatively reliable vote against granting stays of execution in end-stage capital litigation.
Kennedy will likely be remembered more, however, for his swings to the left, because he was the author of numerous opinions that broke new ground in the court’s Eighth Amendment jurisprudence.
Most importantly, he was the primary architect of the court’s proportionality doctrine that led to exemptions from the death penalty for offenders with intellectual disability, juvenile offenders and nonhomicide offenders. He also ultimately joined decisions embracing a broad right of capital defendants to present and have fully considered all relevant mitigating evidence.
Finally, he was the first justice to raise concerns about the extensive use of solitary confinement on death row. Overall, he solidified the court’s role in subjecting American death penalty practices to frequent and detailed — though not particularly intrusive — constitutional regulation.
Kennedy never joined calls from members of the court (Justices Harry Blackmun, John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg) to reconsider the constitutionality of the death penalty as a punishment, but his jurisprudential glosses on the court’s proportionality doctrine arguably strengthen the case for judicial abolition.
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Source: SCOTUSblog, Carol Steiker and Jordan Steiker, July 2, 2018. Carol S. Steiker is the Henry J. Friendly Professor of Law and Faculty Co-Director of the Criminal Justice Policy Program at Harvard Law School. Jordan M. Steiker is the Judge Robert M Parker Endowed Chair in Law and Director of the Capital Punishment Center at the University of Texas at Austin School of Law.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
