Stephen Breyer’s dissent in Glossip v. Gross — the Supreme Court’s decision rejecting the challenge to Oklahoma’s lethal injection protocol—is the latest in a long line of opinions that have addressed the constitutionality of capital punishment even though the issue was not directly before the Court.
These opinions sometimes have been intensely personal—as in Harry Blackmun’s dissent from Callins v. Collins. (“I shall no longer tinker with the machinery of death.”) They have sometimes been confusing—as when John Paul Stevens expounded on the death penalty’s flaws before voting to uphold Kentucky’s lethal injection procedure. They have sometimes marginalized their authors; after 1976, Thurgood Marshall and William Brennan, despairing of persuading their colleagues, dissented from 1,841 capital punishment decisions with opinions of a single sentence each. And they have sometimes changed the course of history, as in 1963 when Arthur Goldberg published his dissent from the Court’s refusal to grant certiorari in a death penalty case, even though virtually no one had conceptualized how it might be argued that capital punishment violated the Constitution. Goldberg intended his dissent as a signal to the bar. Message received, the NAACP Legal Defense Fund began a litigation campaign that culminated in an extraordinary, albeit short-lived, 1972 victory in Furman v. Georgia, declaring capital punishment as then practiced unconstitutional.
Breyer, a student of history, would know all this. It’s only natural, then, to speculate where Breyer envisions his dissent lying on this spectrum, and precisely what signal he intended to send with it. The most optimistic reading of the tea leaves would go something like this: Breyer is signaling the bar that the Court is ready for a broad Eighth Amendment challenge to the death penalty. Justice Ginsburg signed onto Breyer’s dissent, so her vote is assured. Though Justices Sotomayor and Kagan didn’t join Breyer, Sotomayor’s dissent—which Kagan joined—declined to accept the premise that the death penalty is constitutional. Based on prior votes and legal pedigrees, there’s every reason to believe their votes are reliable. The fifth vote could come from Anthony Kennedy who wrote the majority opinions striking down the death penalty for juveniles and child rapists and this term wrote his own unsolicited opinion inviting a challenge to the constitutionality of solitary confinement.
Breyer’s tour de force exploration of the failings of the death penalty reads like what George Washington University law professor Jeffrey Rosen calls a “Kennedy brief”—in which “lawyers on both sides fall over themselves to court Kennedy’s favor by repeatedly citing the opinions of Justice Kennedy.” Indeed, Justice Breyer cites at length all of Justice Kennedy’s death penalty opinions, as well as Kennedy’s opinion on solitary confinement, even though solitary confinement has not traditionally been a major weapon in the artillery of constitutional arguments against capital punishment. The phenomenon of the Kennedy brief is widely known, and it’s difficult to imagine that Breyer wouldn’t have understood that his dissent would be perceived as addressed to that audience of one —even if this weren’t his original intent in penning the dissent. Hence it seems reasonable to surmise that Breyer thinks (or at least recognizes that people might think he thinks) that Kennedy’s vote is available, and that the bar should act while the irons are hot in the fire. That, as much as its inherent merits, is why some abolitionists were thrilled by the Breyer dissent.
Another view is more sober. “I don’t think there’s any inference that can be drawn about Kennedy’s views,” says Jordan Steiker, Robert M. Parker Professor of Law at University of Texas Law School. “I think Justice Breyer’s in it for the long haul.” Michael Meltsner, the George J. and Kathleen Waters Matthews Distinguished University Professor of Law at Northeastern Law School, agrees. “It’s a message to the future,” Meltsner says, “because you cannot imagine a different Supreme Court considering capital punishment as an issue without considering Breyer’s opinion.”
That is a natural and prudent view for Steiker, who runs the University of Texas Capital Punishment Center and for Meltsner, who was the principal architect of the NAACP Legal Defense Fund’s successful abolition campaign: if abolitionists bring an Eighth Amendment challenge to the death penalty and Kennedy votes the wrong way, the damage to the abolition movement could be irreparable. Thinking Breyer thinks Kennedy is ready to overturn the death penalty is “seductive,” Meltsner says. “It could mean that. But experienced death penalty advocates are suspicious of wishful thinking because we could go to the Supreme Court, get four votes, and that sets you back decades.”
Evan Mandery is a professor at John Jay College of Criminal Justice and the author, most recently, of "A Wild Justice: The Death and Resurrection of Capital Punishment in America.”