U.S. Supreme Court Justice Ruth Bader Ginsburg, Death Penalty Skeptic, Has Died

Supreme Court Justice Ruth Bader Ginsburg has died. The 87-year-old jus­tice, who repeat­ed­ly expressed skep­ti­cism about the death penal­ty but nev­er took the step of say­ing it was inher­ent­ly uncon­sti­tu­tion­al, suc­cumbed to pan­cre­at­ic can­cer on September 18, 2020. Her death imme­di­ate­ly threw the future direc­tion of the Court into turmoil.

Appointed by President Bill Clinton in 1993, Ginsburg had been an anchor of the four-jus­tice mod­er­ate-to-lib­er­al wing of the Court and had vot­ed in the major­i­ty of every 5 – 4 Court deci­sion this cen­tu­ry that favored cap­i­tal defen­dants and death-row pris­on­ers. She and Justice Anthony Kennedy pro­vid­ed crit­i­cal votes in the Court’s 6 – 3 deci­sions to bar use of the death penal­ty against peo­ple with intel­lec­tu­al dis­abil­i­ty (Atkins v. Virginia, 2002) and juve­niles under age 18 (Roper v. Simmons, 2005), as well as its 5 – 4 deci­sion in Kennedy v. Louisiana in 2008 that ruled the death penal­ty a dis­pro­por­tion­ate pun­ish­ment for offens­es in which no one is killed. Ginsburg also vot­ed with the five-jus­tice major­i­ty in two recent deci­sions — Hall v. Florida and Moore v. Texas — to pre­vent states from evad­ing the pro­hi­bi­tion against exe­cut­ing the intel­lec­tu­al­ly dis­abled by adopt­ing harsh­er non-sci­en­tif­ic require­ments for prov­ing the pres­ence of the disability.

Since DPIC began track­ing stays of exe­cu­tion in 2015, no death sen­tenced pris­on­er has ever received a stay of exe­cu­tion from the Supreme Court with­out her vote.

In a 2017 appear­ance at Stanford University, Ginsburg famous­ly stat­ed: ​“If I were queen, there would be no death penal­ty.” Nonethless, while she joined Justice Stephen Breyer in urg­ing the Court to recon­sid­er the con­sti­tu­tion­al­i­ty of cap­i­tal pun­ish­ment, she nev­er authored or joined an opin­ion declar­ing that the death penal­ty itself con­sti­tut­ed cru­el and unusu­al pun­ish­ment. Ginsburg explained why in a 2014 inter­view with the National Law Journal: ​“I’ve always made the dis­tinc­tion that if I were in the leg­is­la­ture, there’d be no death penal­ty. … I had to make the deci­sion was I going to be like Brennan and Marshall who took them­selves out of the loop [by say­ing the death penal­ty was always uncon­sti­tu­tion­al]. There have been some good death penal­ty deci­sions. If I took myself out, I couldn’t be any kind of con­trib­u­tor to those.”

The prac­ti­cal impact of Justice Ginsburg’s death will be felt imme­di­ate­ly in cap­i­tal cas­es. In recent years, stays of exe­cu­tion could not issue with­out the vote of at least one of the con­ser­v­a­tive mem­bers of the Court, and the jus­tices reg­u­lar­ly reject­ed con­sti­tu­tion­al chal­lenges to exe­cu­tion pro­ce­dures or denied stays of exe­cu­tions by 5 – 4 votes. Because tie votes leave undis­turbed the deci­sions of a low­er court, the votes of at least two con­ser­v­a­tive jus­tices are need­ed for a death-row pris­on­er to reach the 5 – 3 thresh­old now required for the Court to stay an execution.

In 2016, Senate Majority Leader Mitch McConnell blocked a Senate vote on President Barack Obama’s nom­i­na­tion of mod­er­ate fed­er­al cir­cuit court judge Merrick Garland to fill the Supreme Court vacan­cy caused by the death of con­ser­v­a­tive Justice Antonin Scalia in February of that year. McConnell said at that time that the Senate should not fill court vacan­cies in a pres­i­den­tial elec­tion year, leav­ing it to the vot­ers to decide who should fill the vacan­cy. That gam­bit led to the appoint­ment of con­ser­v­a­tive Neil Gorsuch as Scalia’s replacement. 

Despite his pri­or asser­tion, McConnell has said that he intends to push for a speedy elec­tion-year con­fir­ma­tion of Ginsburg’s replacement. 

If President Trump suc­ceeds in appoint­ing a replace­ment for Ginsburg in the six weeks before the 2020 pres­i­den­tial elec­tion or in the sub­se­quent lame duck ses­sion of Congress, the Court is expect­ed to take a hard right turn that could sig­nif­i­cant­ly dimin­ish fed­er­al enforce­ment of con­sti­tu­tion­al rights in cap­i­tal cas­es, poten­tial­ly for decades.