A couple of weeks ago at the end of February, the Supreme Court had a busy day of opinions, dropping three of them that had significant dissents. I've covered the two already, and this post will cover the third and final. Most intriguingly, this case involves a feisty dispute between the Majority and the Dissent on whether the case should have been ruled on at all, with the equivalent of Supreme Court sniping showing up in both opinions. Enjoy!
Madison v. Alabama, 17-7505 (Circuit Court of Alabama, Mobile County)
MAJ: Kagan, joined by Roberts, Ginsburg, Breyer, and Sotomayor
DIS: Alito, joined by Thomas and Gorsuch
* Kavanaugh did not participate in this case
If you just look at the basic details of this case, you'll notice something pretty unusual right away. Most cases come to the Supreme Court from a United States Circuit Court of Appeals or from a state Supreme Court. This case, on the other hand, was granted cert from the Circuit Court of Alabama, Mobile County. That is a trial level court, where cases begin. Rarely does the Court grant cert to a case at that level, so already you might recognize that we are in somewhat unusual territory here.
The reason the case is in this posture isn't really relevant to the discussion. Suffice it to say it has gone around the block before. We are dealing here with a death penalty case involving a man who was convicted of killing a police officer all the way back in 1985. Starting in 2015, Madison's health began to deteriorate and he had a series of strokes that significantly impacted his mental state, including his memory. Given the change in his health and mental state, Madison challenged his death penalty conviction on the grounds that he was no longer mentally competent under a line of cases, including Ford v. Wainwright, 477 U.S. 399 (1986) (holding that a prisoner who loses his sanity after sentencing cannot be executed) and Panetti v. Quarterman, 551 U.S. 930 (2007) (prohibiting execution where mental illness prevents a rational understanding of why the death penalty is being applied).
Since the challenge was brought under Federal habeas corpus proceedings, the Court was bound by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to give heavily deferential treatment to the State of Alabama, and to overturn the sentence only if the state court ruling "involved an unreasonable application of clearly established Federal law" or "rested on an unreasonable determination of the facts." The court found no such evidence and upheld the death penalty conviction.
In 2018, Alabama officially set an execution date. Madison again went to state court to try to block the execution, but this time argued that since the previous case, Madison's condition had further deteriorated. Alabama responded that in its view, nothing significant had changed, and further argued that since Madison was not "delusional or psychotic," the State was allowed to carry out the sentence of death. The court found that Madison was still competent to be executed because he "did not provide a substantial threshold showing of insanity."
The Court accepted the case to consider two questions: (1) whether Madison was exempt from execution merely because he could not remember committing his crime; and (2) whether Madison was exempt from execution merely because he suffers from dementia, with no psychotic delusions or other psychological breaks. The notion that there were two questions presented was, itself, part of the battle between the Justices in this case. The Majority noted in a footnote that "the dissent is in high dudgeon (!) over our taking up the second question, arguing that it was not presented in Madison's petition for certiorari." While the Majority framed the second question in a clearer way, it points out that the question granted cert was "whether [the 8th] Amendment bars [Madison's] execution because his vascular dementia and severe cognitive dysfunction prevent him from either remembering his crime or understanding the circumstances of his scheduled execution." For this majority, the framing of the second question presented that was granted includes within it by definition the framing that was adopted by the Majority in its opinion.
Interestingly, by the time the case arrived at the Court this time, both parties essentially agreed with the rule of law that should apply - an extremely unusual situation, and one which leaves the Court in a somewhat dubious place as far as intervening. Don't forget that, as it will be important in discussing the dissent. For the purposes of the opinion here, though, it means that there is no question as to the answer to the two questions presented: (1) merely failing to remember a crime is not sufficient to exempt someone from the death penalty; and (2) no psychotic delusions or other psychological breaks are required to exempt someone from the death penalty if the prisoner is incapable of understanding the circumstances behind the execution. Alabama had argued against the second proposition in earlier stages of the litigation but no longer did - it simply argued that Madison still didn't reach the requisite threshold necessary to exempt him from his execution.
Despite the agreement on the rule of law in question, the Court nonetheless laid out the rationale behind its decision. First, in establishing that mere failure of memory is not sufficient to rule out the use of the death penalty, the Court goes back to Panetti for the proposition that it is "understanding" and not "memory" that is relevant to legitimizing punishment. Just as modern individuals can have no "independent recollection of the Civil War," it is still possible to "reach a rational - indeed sophisticated - understanding of that conflict and its consequences." So, too, an individual that cannot remember committing a crime can nonetheless remain capable of comprehending that they committed a crime and are being punished therefore. Lack of memory does not provide a defense.
Nonetheless, the Court says there must be an analysis of the overall ability of the prisoner to have a "rational understanding" of the circumstances surrounding their punishment and that memory loss can factor in to that analysis - for instance, if someone is incapable of forming any memories whatsoever, it makes it likelier that they will be unable to have a rational understanding of the reason for a death sentence whatsoever. What matters is whether a particular mental disorder "has had a particular effect: an inability to rationally understand why the State is seeking execution." The reason for this rule is that "an execution lacks retributive purpose when a mentally ill prisoner cannot understand the societal judgment underlying his sentence," and therefore such an execution "offends morality in the same circumstances."
Given the agreement on these rules, the Court acknowledges that it really has just one thing left to decide: "whether Madison's execution may go forward based on the state court's decision below." Madison argues that the state court decisions at every phase were tainted by the idea that only a finding that a prisoner suffered from delusions and not just dementia could justify a declaration of incompetence and invalidate the death penalty. Alabama argues that it now acknowledges such a position would be wrong, but that nothing in the earlier court rulings was tainted by that view of the law and the rulings had independent and adequate bases in the law. The Court comes down in favor of Madison.
Indeed, the trial court ruling that the Court was reviewing in this case had just one sentence of explanation, and it focused on the argument that Madison "did not provide a substantial threshold showing of insanity ...". Alabama at this point was still making the argument that Madison would need to be "delusional or psychotic" and that mere dementia "could not be sufficient to bar his execution." Given Alabama's continued arguments that delusions or psychosis were requirements, the evidence all suggests that the state court ruling was based on a misunderstanding of the appropriate rule of law and was therefore invalid and unconstitutional. "The court's 2018 order thus calls out for a do-over." The Court then establishes that evidence which was previously relied upon by the state in making its rulings is tainted by incorrect understandings of the law, and essentially requires a completely new competency hearing to be carried out in order to get the appropriate evidence. And so, with those instructions, the Court vacates the previous judgment and remands the case for the do-over that it said was necessitated.
Alito's Dissent
Justice Alito and his crew (Justices Thomas and Gorsuch) are displeased by this case. Alito's dissent begins with the terse statement that "What the Court has done in this case makes a mockery of our Rules." The reason? The Dissent believes that Madison's attorney's pulled a "bait and switch" with the Question Presented. Remember, the Supreme Court takes the cases that it chooses to take, not cases that are thrust upon (with limited exceptions). In picking the cases it is going to hear, the Court establishes a "Question Presented" (or in some cases, multiple questions) on which it intends to rule. The Question Presented guides everything that happens in the case, from the briefings that are filed to the arguments that are raised to the ultimate answer that comes from the Court. As a result, arguing that the Court majority has allowed a "bait and switch" in the Question Presented is to suggest that the Court has unfairly given an advantage to one side over another, and it's a pretty serious accusation.
Remember that the Majority framed the second question to be answered in this case as being whether or not someone could be executed if they suffer from dementia but not psychotic or delusional episodes. In reality, the question granted clearly did not say anything like that - but arguably the question that was granted included that question within its scope as a matter of necessity. The Dissent finds no such implication in the granted question, and instead would dismiss the case as improvidently granted.
In analyzing the Question Presented, the Dissent looks at the final phrase of question two that the Majority relies on to frame the argument as it does and says that you can maybe get there, if you squint hard: "The final phrase in question two and certain passages in the petition, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner's dementia rendered him incapable of having a rational understanding of the reason for his execution. But that is the sort of fact-bound question on which we rarely grant review" (emphasis in original).
Even worse in the Dissent's view is that the Court not only allowed a bait and switch on the question presented, it went out if its way to manufacture an argument that Madison never raised in his petition. "It is a travesty to read [the petition] as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no inkling of that argument in the petition." Further, "because the petition did not raise -- indeed, did not even hint at -- the argument on which the Court now grants relief, the Court's decision is insupportable."
As a result, the Dissent concludes that "what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today's decision is doubt on the part of the majority regarding the correctness of the state court's factual finding on the question whether Madison has a rational understanding of the reason for his execution." Of course, the Supreme Court is not intended to be a finder of fact. It doesn't hear witnesses, it doesn't carry out discovery, it doesn't have the same methods at its disposal as a trial court does for that kind of work. To argue that the Court's Majority opinion is essentially based on its view of the facts, rather than on the conclusions of law that it is properly supposed to draw, is leveling a major claim of incompetence on the Court - it's a rather stinging rebuke, even if it is couched in polite phrases such as "I therefore respectfully dissent." This dissent was the judicial equivalent of a primal scream of outrage.
Analysis
There is no question that the Majority reached a bit here in order to reach a conclusion that at least appears to have been based as much on facts as on law, but if there is ever a place to do that it is in a death penalty case. There is no coming back from a carrying out of the death penalty. If you get it wrong, you better err on the side of the person who is going to be executed rather than on the side of the state.
The Majority opinion's hook for its ruling was admittedly a bit weak, and also admittedly the Court did more work than it probably should have done to frame the question presented and the evidence in front of it to maximum effect. I don't think this was done to the extent that it is illegitimate, but I can understand the outrage of the Dissent even if I disagree with it and think it is misplaced in a case like this. The Court did indeed seem to be reaching for a specific purpose with this case.
Despite this, the Majority managed to secure the Chief Justice's vote, so it's impossible to argue that it has no basis in the law since it was not just a "liberal" opinion. This is probably because the state of Alabama repeatedly erred in making the arguments that it made to the various courts, and there was simply no way to determine from the record how much the unconstitutional arguments that were being made by Alabama infected the decision-making of the judges who had been involved in the case at each stage. Given that, and given the consequences of getting this decision wrong, I'm ok with the Court taking a little bit of a more of an active role in framing the appropriate Question Presented and reading the scope of the arguments made in petitions as broadly as possible to ensure that the cause of justice is being effectively carried out.
Madison v. Alabama, 17-7505 (Circuit Court of Alabama, Mobile County)
MAJ: Kagan, joined by Roberts, Ginsburg, Breyer, and Sotomayor
DIS: Alito, joined by Thomas and Gorsuch
* Kavanaugh did not participate in this case
If you just look at the basic details of this case, you'll notice something pretty unusual right away. Most cases come to the Supreme Court from a United States Circuit Court of Appeals or from a state Supreme Court. This case, on the other hand, was granted cert from the Circuit Court of Alabama, Mobile County. That is a trial level court, where cases begin. Rarely does the Court grant cert to a case at that level, so already you might recognize that we are in somewhat unusual territory here.
The reason the case is in this posture isn't really relevant to the discussion. Suffice it to say it has gone around the block before. We are dealing here with a death penalty case involving a man who was convicted of killing a police officer all the way back in 1985. Starting in 2015, Madison's health began to deteriorate and he had a series of strokes that significantly impacted his mental state, including his memory. Given the change in his health and mental state, Madison challenged his death penalty conviction on the grounds that he was no longer mentally competent under a line of cases, including Ford v. Wainwright, 477 U.S. 399 (1986) (holding that a prisoner who loses his sanity after sentencing cannot be executed) and Panetti v. Quarterman, 551 U.S. 930 (2007) (prohibiting execution where mental illness prevents a rational understanding of why the death penalty is being applied).
Since the challenge was brought under Federal habeas corpus proceedings, the Court was bound by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to give heavily deferential treatment to the State of Alabama, and to overturn the sentence only if the state court ruling "involved an unreasonable application of clearly established Federal law" or "rested on an unreasonable determination of the facts." The court found no such evidence and upheld the death penalty conviction.
In 2018, Alabama officially set an execution date. Madison again went to state court to try to block the execution, but this time argued that since the previous case, Madison's condition had further deteriorated. Alabama responded that in its view, nothing significant had changed, and further argued that since Madison was not "delusional or psychotic," the State was allowed to carry out the sentence of death. The court found that Madison was still competent to be executed because he "did not provide a substantial threshold showing of insanity."
The Court accepted the case to consider two questions: (1) whether Madison was exempt from execution merely because he could not remember committing his crime; and (2) whether Madison was exempt from execution merely because he suffers from dementia, with no psychotic delusions or other psychological breaks. The notion that there were two questions presented was, itself, part of the battle between the Justices in this case. The Majority noted in a footnote that "the dissent is in high dudgeon (!) over our taking up the second question, arguing that it was not presented in Madison's petition for certiorari." While the Majority framed the second question in a clearer way, it points out that the question granted cert was "whether [the 8th] Amendment bars [Madison's] execution because his vascular dementia and severe cognitive dysfunction prevent him from either remembering his crime or understanding the circumstances of his scheduled execution." For this majority, the framing of the second question presented that was granted includes within it by definition the framing that was adopted by the Majority in its opinion.
Interestingly, by the time the case arrived at the Court this time, both parties essentially agreed with the rule of law that should apply - an extremely unusual situation, and one which leaves the Court in a somewhat dubious place as far as intervening. Don't forget that, as it will be important in discussing the dissent. For the purposes of the opinion here, though, it means that there is no question as to the answer to the two questions presented: (1) merely failing to remember a crime is not sufficient to exempt someone from the death penalty; and (2) no psychotic delusions or other psychological breaks are required to exempt someone from the death penalty if the prisoner is incapable of understanding the circumstances behind the execution. Alabama had argued against the second proposition in earlier stages of the litigation but no longer did - it simply argued that Madison still didn't reach the requisite threshold necessary to exempt him from his execution.
Despite the agreement on the rule of law in question, the Court nonetheless laid out the rationale behind its decision. First, in establishing that mere failure of memory is not sufficient to rule out the use of the death penalty, the Court goes back to Panetti for the proposition that it is "understanding" and not "memory" that is relevant to legitimizing punishment. Just as modern individuals can have no "independent recollection of the Civil War," it is still possible to "reach a rational - indeed sophisticated - understanding of that conflict and its consequences." So, too, an individual that cannot remember committing a crime can nonetheless remain capable of comprehending that they committed a crime and are being punished therefore. Lack of memory does not provide a defense.
Nonetheless, the Court says there must be an analysis of the overall ability of the prisoner to have a "rational understanding" of the circumstances surrounding their punishment and that memory loss can factor in to that analysis - for instance, if someone is incapable of forming any memories whatsoever, it makes it likelier that they will be unable to have a rational understanding of the reason for a death sentence whatsoever. What matters is whether a particular mental disorder "has had a particular effect: an inability to rationally understand why the State is seeking execution." The reason for this rule is that "an execution lacks retributive purpose when a mentally ill prisoner cannot understand the societal judgment underlying his sentence," and therefore such an execution "offends morality in the same circumstances."
Given the agreement on these rules, the Court acknowledges that it really has just one thing left to decide: "whether Madison's execution may go forward based on the state court's decision below." Madison argues that the state court decisions at every phase were tainted by the idea that only a finding that a prisoner suffered from delusions and not just dementia could justify a declaration of incompetence and invalidate the death penalty. Alabama argues that it now acknowledges such a position would be wrong, but that nothing in the earlier court rulings was tainted by that view of the law and the rulings had independent and adequate bases in the law. The Court comes down in favor of Madison.
Indeed, the trial court ruling that the Court was reviewing in this case had just one sentence of explanation, and it focused on the argument that Madison "did not provide a substantial threshold showing of insanity ...". Alabama at this point was still making the argument that Madison would need to be "delusional or psychotic" and that mere dementia "could not be sufficient to bar his execution." Given Alabama's continued arguments that delusions or psychosis were requirements, the evidence all suggests that the state court ruling was based on a misunderstanding of the appropriate rule of law and was therefore invalid and unconstitutional. "The court's 2018 order thus calls out for a do-over." The Court then establishes that evidence which was previously relied upon by the state in making its rulings is tainted by incorrect understandings of the law, and essentially requires a completely new competency hearing to be carried out in order to get the appropriate evidence. And so, with those instructions, the Court vacates the previous judgment and remands the case for the do-over that it said was necessitated.
Alito's Dissent
Justice Alito and his crew (Justices Thomas and Gorsuch) are displeased by this case. Alito's dissent begins with the terse statement that "What the Court has done in this case makes a mockery of our Rules." The reason? The Dissent believes that Madison's attorney's pulled a "bait and switch" with the Question Presented. Remember, the Supreme Court takes the cases that it chooses to take, not cases that are thrust upon (with limited exceptions). In picking the cases it is going to hear, the Court establishes a "Question Presented" (or in some cases, multiple questions) on which it intends to rule. The Question Presented guides everything that happens in the case, from the briefings that are filed to the arguments that are raised to the ultimate answer that comes from the Court. As a result, arguing that the Court majority has allowed a "bait and switch" in the Question Presented is to suggest that the Court has unfairly given an advantage to one side over another, and it's a pretty serious accusation.
Remember that the Majority framed the second question to be answered in this case as being whether or not someone could be executed if they suffer from dementia but not psychotic or delusional episodes. In reality, the question granted clearly did not say anything like that - but arguably the question that was granted included that question within its scope as a matter of necessity. The Dissent finds no such implication in the granted question, and instead would dismiss the case as improvidently granted.
In analyzing the Question Presented, the Dissent looks at the final phrase of question two that the Majority relies on to frame the argument as it does and says that you can maybe get there, if you squint hard: "The final phrase in question two and certain passages in the petition, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner's dementia rendered him incapable of having a rational understanding of the reason for his execution. But that is the sort of fact-bound question on which we rarely grant review" (emphasis in original).
Even worse in the Dissent's view is that the Court not only allowed a bait and switch on the question presented, it went out if its way to manufacture an argument that Madison never raised in his petition. "It is a travesty to read [the petition] as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no inkling of that argument in the petition." Further, "because the petition did not raise -- indeed, did not even hint at -- the argument on which the Court now grants relief, the Court's decision is insupportable."
As a result, the Dissent concludes that "what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today's decision is doubt on the part of the majority regarding the correctness of the state court's factual finding on the question whether Madison has a rational understanding of the reason for his execution." Of course, the Supreme Court is not intended to be a finder of fact. It doesn't hear witnesses, it doesn't carry out discovery, it doesn't have the same methods at its disposal as a trial court does for that kind of work. To argue that the Court's Majority opinion is essentially based on its view of the facts, rather than on the conclusions of law that it is properly supposed to draw, is leveling a major claim of incompetence on the Court - it's a rather stinging rebuke, even if it is couched in polite phrases such as "I therefore respectfully dissent." This dissent was the judicial equivalent of a primal scream of outrage.
Analysis
There is no question that the Majority reached a bit here in order to reach a conclusion that at least appears to have been based as much on facts as on law, but if there is ever a place to do that it is in a death penalty case. There is no coming back from a carrying out of the death penalty. If you get it wrong, you better err on the side of the person who is going to be executed rather than on the side of the state.
The Majority opinion's hook for its ruling was admittedly a bit weak, and also admittedly the Court did more work than it probably should have done to frame the question presented and the evidence in front of it to maximum effect. I don't think this was done to the extent that it is illegitimate, but I can understand the outrage of the Dissent even if I disagree with it and think it is misplaced in a case like this. The Court did indeed seem to be reaching for a specific purpose with this case.
Despite this, the Majority managed to secure the Chief Justice's vote, so it's impossible to argue that it has no basis in the law since it was not just a "liberal" opinion. This is probably because the state of Alabama repeatedly erred in making the arguments that it made to the various courts, and there was simply no way to determine from the record how much the unconstitutional arguments that were being made by Alabama infected the decision-making of the judges who had been involved in the case at each stage. Given that, and given the consequences of getting this decision wrong, I'm ok with the Court taking a little bit of a more of an active role in framing the appropriate Question Presented and reading the scope of the arguments made in petitions as broadly as possible to ensure that the cause of justice is being effectively carried out.
Last edited: