Nearly a quarter century ago, in Atkins v. Virginia (2002), the Supreme Court held that it is unconstitutional to execute offenders with an intellectual disability. Next Wednesday, however, the Supreme Court will hear arguments in a new case, Hamm v. Smith, which tests whether the Court’s current Republican majority wishes to retain this limit on capital punishment.

The most likely outcome in Hamm is probably a decision giving states more leeway to execute people with marginal claims that they are intellectually disabled — “borderline” cases where clinicians might disagree on whether the offender should be diagnosed with an intellectual disability. But at least some members of the Court have signalled that they would like to go much further.

In Bucklew v. Precythe (2019), five Republican justices seemed to endorse a radical reshaping of the Court’s approach to the Eighth Amendment, which prohibits “cruel and unusual punishments.”

Key takeaways

• The Supreme Court is hearing a new case asking how to determine if someone is intellectually disabled.
• It is unconstitutional to execute intellectually disabled people under Atkins v. Virginia (2002).
• Some members of the Court’s Republican majority want to massively shrink the protections all Americans enjoy against cruel and unusual punishment, but it is unclear if those members have a majority.

For about six decades, the Court has held that this amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as a particular punitive practice became less common and less accepted within modern American society, it stood on increasingly dubious constitutional ground. Atkins, for example, pointed to the “large number of States prohibiting the execution of [intellectually disabled] persons” to justify its conclusion that these individuals may not be killed by the state.

In Bucklew, however, Justice Neil Gorsuch’s majority opinion ignored this “evolving standards of decency” framework, instead suggesting that courts must ask whether a particular punishment had fallen out of favor “by the time of the founding.” While that distinction might seem esoteric, the implications are breathtaking.

Among other things, this historical approach would likely lead the Court to overrule past decisions holding that the Constitution forbids excessive punishments for relatively minor crimes. So jaywalkers, small-time drug offenders, or a driver who does not come to a complete stop at a “STOP” sign........

© Vox