In a 2019 opinion, Justice Neil Gorsuch seemed to call for a wholesale rethinking of the Supreme Court’s approach to excessive punishments. | Melina Mara/Getty Images

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

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 could all be sentenced to life in prison.

Though it’s not at all clear that a majority of the Court will go that far, it is very likely that the Eighth Amendment will emerge smaller from the Court’s decision in Hamm, potentially........

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