A dissent by 77-year-old Supreme Court Clarence Thomas in an Alabama death penalty ruling this week found two conservative justices siding with the minority liberal wing, and three other conservatives wanting nothing to do with his recommendations.
According to a report from Slate, Thomas’s dissent and urging to overturn precedent may have been too far afield for the tastes of Justices John Roberts, Sam Alito, and Neil Gorsuch.
Thomas's extreme position in the Alabama death penalty case Hamm v. Smith has exposed deep fissures within the conservative majority, with three justices distancing themselves from his call to overturn 25 years of precedent protecting condemned individuals with cognitive disabilities.
In his solo dissent, Thomas argued that nothing in constitutional history prevents executing people with intellectual disabilities and urged the court to overrule the landmark Atkins v. Virginia decision that banned such executions under the Eighth Amendment's protection against cruel and unusual punishment.
"Nothing in our history suggests there's anything unlawful about executing murderers now protected by Atkins," Thomas wrote, calling for the court to "restore the Cruel and Unusual Punishments Clause's fixed meaning."
Thomas specifically argued it would be constitutional to execute people with the cognitive abilities of a young child — a position so extreme that even his conservative allies refused to endorse it.
Slate's Dahlia Lithwick and Mark Joseph Stern reported that Thomas stood entirely alone in his position. "Roberts, Alito, and Gorsuch didn't sign onto Thomas' dissent," they wrote.
However, the three justices signaled they might be open to weakening intellectual disability protections if a state presents a "cleaner rule" for determining disability. "But this trio did suggest that if the court can't articulate a clean rule about who is intellectually disabled, it may need to overturn all protections against the execution of that whole class of capital defendants," Lithwick and Stern noted.
The dissent's rejection by even conservative justices is somewhat encouraging. Justices Brett Kavanaugh and Amy Coney Barrett notably refused to sign onto the Roberts-Alito-Gorsuch position suggesting potential openness to eliminating protections entirely.
However, Lithwick and Stern warned of future danger. "That is a bad omen, though it's encouraging that Kavanaugh and Barrett didn't sign onto it. The question now is: If a state can litigate this better and make a more coherent argument, will Kavanaugh and Barrett sign on then?" they asked.
