When will the U.S supreme court rule the death Penalty unconstitutional?

[Bootes Void]

Alot of social change comes from the court so when do you expect the court to rule it unconstitutional or how would it happen for a case to appear?

[Skill and Chance]

Literally none of the 6 Republican appointees will even touch this, so not for a very long time if ever. It's possible the next time the court has a Democratic appointed majority, but even then I'm not sure if Kagan supports this or if a Biden appointee successor to Breyer would.  Interestingly, Breyer does believe it's unconstitutional, but Kagan and Sotomayor did not join the dissent Breyer/Ginsburg dissent.  Nonetheless, I can't imagine Sotomayor would ever be the deciding vote to keep the DP.  In all likelihood, none of the current justices but the 3 Trump appointees and maybe Kagan will ever be on a majority liberal court,  so we really can't assume anything. 

[brucejoel99]

Not until we have another Warren Court, so not for a long while. Maybe not even in our lifetimes.

[True Federalist (진정한 연방 주의자)]

Hopefully not until we have a Constitutional amendment banning the death penalty.  That said, the Court has a sad history of misusing the Eighth Amendment to legislate from the bench. The Eighth Amendment, like the related provisions of the English Bill of Rights, was intended to limit the power of judges, not of legislatures, to decide what penalties to impose for particular offenses.

However, realistically it is useless to hope that the Court will willingly resume giving legislatures due deference instead of choosing to act as unelected legislators. Still, given the current composition of the court, not for at least another two decades, even if the Democrats unpack the Court after the midterms.

After all, the contemporaneous Fifth Amendment lays out requirements for bringing capital cases, so it is ludicrous that the Eighth could be used as a basis for barring capital punishment unless the Court decides to legislate.

[MarkD]

Not until we have another Warren Court, so not for a long while. Maybe not even in our lifetimes.

But the Warren Court never did strike down the death penalty. It was (temporarily) struck down by the Burger Court, in 1972's Furman v. Georgia. The five-man majority in Furman was made up of the Court's three most staunchly liberal Justices -- Douglas, Brennan, and Marshall -- but also two of its relatively moderate Justices -- Stewart and White. So I don't think there has to be at least five staunchly liberal Justices to do what the OP asks.

[Hope For A New Era]

I expect it will be ended by legislation long before that happens. Public support for the death penalty has been steadily declining for 25 years now. It's now in the low 50s. We're probably only a few years away from majority opposition.

[brucejoel99]

Not until we have another Warren Court, so not for a long while. Maybe not even in our lifetimes.

But the Warren Court never did strike down the death penalty. It was (temporarily) struck down by the Burger Court, in 1972's Furman v. Georgia. The five-man majority in Furman was made up of the Court's three most staunchly liberal Justices -- Douglas, Brennan, and Marshall -- but also two of its relatively moderate Justices -- Stewart and White. So I don't think there has to be at least five staunchly liberal Justices to do what the OP asks.

To be clear, I meant "Warren Court" in the colloquial sense of a Supreme Court (mostly) issuing liberal outcomes, though - in the modern day, given the current makeup of the Court - this probably would require 5 staunchly liberal Justices anyway.

[Hammy]

Won't happen until we have at least 6-7 liberal justices, so probably not in any of our lifetimes.

[Skill and Chance]

Won't happen until we have at least 6-7 liberal justices, so probably not in any of our lifetimes.

It's going to require generational Dem dominance of several Plains/Mountain West states to flip SCOTUS at this point. 

[True Federalist (진정한 연방 주의자)]

Not until we have another Warren Court, so not for a long while. Maybe not even in our lifetimes.

But the Warren Court never did strike down the death penalty It was (temporarily) struck down by the Burger Court, in 1972's Furman v. Georgia. The five-man majority in Furman was made up of the Court's three most staunchly liberal Justices -- Douglas, Brennan, and Marshall -- but also two of its relatively moderate Justices -- Stewart and White. So I don't think there has to be at least five staunchly liberal Justices to do what the OP asks.

Except that the death penalty itself wasn't struck down in Furman. It was the manner in which the death penalty was imposed that was struck down. Only Brennan and Marshall went so far as to hold the death penalty was itself unConstitutional. It would require a far more anti-death penalty Court than we have ever had.

(Incidentally, Marshall's concurrence in Furman is one of the most blatant attempts to legislate from the bench, I've ever read.  He outright states "It is immediately obvious, then, that since capital punishment is not a recent phenomenon, if it violates the Constitution, it does so because it is excessive or unnecessary, or because it is abhorrent to currently existing moral values."  He then goes on to usurp the legislative function of determining the popular will by baldly stating without any supporting evidence: "Assuming knowledge of all the facts presently available regarding capital punishment, the average citizen would, in my opinion, find it shocking to his conscience and sense of justice. For this reason alone, capital punishment cannot stand."  It certainly shocked his own conscience and sense of justice, but judges are not average citizens, nor are they supposed to reflect the views of average citizens.  That function in our system lies with the legislative branch, not the judicial branch.

But enough of Marshall and his attempts to legislate from the bench.  For a court to find capital punishment unConstitutional without acting as an unelected legislature, it would have to overturn among other case law In re Kemmler, 136 U.S. 436 (1890): "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous -- something more than the mere extinguishment of life." (Bold added by me.) Kemmler was a case concerning whether the then newfangled method of execution by alternating current adopted by the State of New York in place of hanging was Constitutional.  There's also the earlier Wilkerson v. Utah, 99 U.S. 130 (1878) which held using firing squad as a method of executing capital punishment was Constitutional, tho it didn't bother to explicitly hold the death penalty itself as Constitutional the way Kemmler later did.

(The one good thing about Marshall's concurrence in Furman is that it does present a good historical overview of the judicial history of capital punishment in the United States up until that time.)

[Former President tack50]

I would agree with Ernest here. I am obviously not a constitutional expert but given that the 8th amendment was passed in the late 18th century and that the death penalty was already a thing then it is very easy to see how the death penalyt was not supposed to be seen as "cruel or unusual punishment" ?

So the answer, based on a correct reading of the constitution, should be "never". Or at least not until a constitutional amendment is passed.

[Samof94]

I expect it will be ended by legislation long before that happens. Public support for the death penalty has been steadily declining for 25 years now. It's now in the low 50s. We're probably only a few years away from majority opposition.

True. I think racial demographics will help.

[H.E. VOLODYMYR ZELENKSYY]

I would agree with Ernest here. I am obviously not a constitutional expert but given that the 8th amendment was passed in the late 18th century and that the death penalty was already a thing then it is very easy to see how the death penalyt was not supposed to be seen as "cruel or unusual punishment" ?

So the answer, based on a correct reading of the constitution, should be "never". Or at least not until a constitutional amendment is passed.

It’s a good thing we don’t live in the 18th century, then.

[Alcibiades]

I mean, when the Founders wrote the Constitution whipping slaves was viewed as an acceptable punishment. I would argue that capital punishment is cruel and unusual punishment, but I accept it is legally difficult to prove this.

[forrestsaver]

I don't think they ever will. The current justices certainly would not. If the liberals take a SCOTUS majority, this will become the next "football issue" constantly changing with the balance of the court.

[lfromnj]

I mean, when the Founders wrote the Constitution whipping slaves was viewed as an acceptable punishment. I would argue that capital punishment is cruel and unusual punishment, but I accept it is legally difficult to prove this.

Yet the former has been specifically and constitutionally changed using the 13th amendent and the proper process. There are 2 ways to get rid of the death penalty in the US. You can either advocate at all legislative levels including state and federal or using referendum. The other is a constitutional amendment. As True Federalist said earlier cruel and unusual punishment usually means in the context of the judge ordering the punishment at sentencing. Considering the death penalty is legal in certain states it should not be blocked as cruel and unusual.

[SnowLabrador]

Never. The country is only getting more right-wing.

[True Federalist (진정한 연방 주의자)]

Never. The country is only getting more right-wing.

That's as silly as the 1960s justices who thought history was inexorably heading leftward, so they only needed to give it a push to get there a little sooner. History is not, and never has been, monotonic in any political direction.

[All Along The Watchtower]

When the Federalist Society ceases to exist and its judges are no longer on the Supreme Court.

[Samof94]

Never. The country is only getting more right-wing.

That's as silly as the 1960s justices who thought history was inexorably heading leftward, so they only needed to give it a push to get there a little sooner. History is not, and never has been, monotonic in any political direction.

See Iran’s more Westernized past for details.

[Senator-elect Spark]

Hopefully very soon - it's wasteful, inhumane violation of the 8th amendment, and expensive. We need an immediate federal moratorium and eventual abolition.

[True Federalist (진정한 연방 주의자)]

Hopefully very soon - it's wasteful, inhumane violation of the 8th amendment, and expensive. We need an immediate federal moratorium and eventual abolition.

I've written about this before, but the Supreme Court's misapplication of the Eighth Amendment prohibition on "cruel and unusual punishment" is the clearest example of judicial overreach that is currently going on. (Only the Lochner era treatment of the Fourteenth Amendment is comparably bad.) The prohibition was intended as a limit on the judicial and the executive branches, not the legislative branch. In my opinion, the only valid reason for the court to strike down a punishment under the eighth would be if the prosecution had sought and obtained a punishment that was on the books, but hadn't been used in a long while. That still leaves Fifth and Fourteenth Amendment reasons to strike down particular cases or implementations of capital punishment.

[Torie]

Hopefully very soon - it's wasteful, inhumane violation of the 8th amendment, and expensive. We need an immediate federal moratorium and eventual abolition.

I've written about this before, but the Supreme Court's misapplication of the Eighth Amendment prohibition on "cruel and unusual punishment" is the clearest example of judicial overreach that is currently going on. (Only the Lochner era treatment of the Fourteenth Amendment is comparably bad.) The prohibition was intended as a limit on the judicial and the executive branches, not the legislative branch. In my opinion, the only valid reason for the court to strike down a punishment under the eighth would be if the prosecution had sought and obtained a punishment that was on the books, but hadn't been used in a long while. That still leaves Fifth and Fourteenth Amendment reasons to strike down particular cases or implementations of capital punishment.

My take is that the 8th is one instance where the Constitution is a "living document," in that what constitutes cruel and unusual is subject to change as societal morays change. So when most states have banned it, that would constitute a good inditia that it has indeed become cruel and unusual.

[True Federalist (진정한 연방 주의자)]

Hopefully very soon - it's wasteful, inhumane violation of the 8th amendment, and expensive. We need an immediate federal moratorium and eventual abolition.

I've written about this before, but the Supreme Court's misapplication of the Eighth Amendment prohibition on "cruel and unusual punishment" is the clearest example of judicial overreach that is currently going on. (Only the Lochner era treatment of the Fourteenth Amendment is comparably bad.) The prohibition was intended as a limit on the judicial and the executive branches, not the legislative branch. In my opinion, the only valid reason for the court to strike down a punishment under the eighth would be if the prosecution had sought and obtained a punishment that was on the books, but hadn't been used in a long while. That still leaves Fifth and Fourteenth Amendment reasons to strike down particular cases or implementations of capital punishment.

My take is that the 8th is one instance where the Constitution is a "living document," in that what constitutes cruel and unusual is subject to change as societal morays change. So when most states have banned it, that would constitute a good inditia that it has indeed become cruel and unusual.

That's an extremely subjective opinion, which it should be up to Congress and/or the State legislatures to decide, not the judiciary.  Moreover, your argument presumes that social morays can only change in one way, towards finding certain things cruel that weren't once seen as being cruel.  I completely reject the "evolving standards of decency" thesis, and even if I accepted that, I would still completely reject the idea that it is the judicial branch's role to determine how far standards have evolved. What is cruel is subjective and thus is a legislative matter; whether a particular act meets a particular standard of being cruel is objective and thus a judicial matter.

Trop v. Dulles, 356 U.S. 86 (1958) reached the right result but in the wrong way. Trop's citizenship was defined by the Fourteenth Amendment and could not be abrogated by an Act of Congress. While I would not necessarily go as far as Afroyim v. Rusk, 387 U.S. 253 (1967) in limiting the authority of Congress to revoke naturalized citizenship, since Trop was a natural-born citizen, I don't have to go that far to reach the result of Trop without invoking the Eighth.

[Torie]

OK, no problem. We shall just agree to disagree on this one.