The Supreme Court declined Monday morning to hear the case of Hidalgo v. Arizona, bringing to an end a well-known former Obama administration lawyer's quest to judicially abolish capital punishment in America.
Hidalgo was initially filed with the Court through the work of former acting Solicitor General and famed litigator Neal Katyal. He picked up the case of Abel Daniel Hidalgo, who pled guilty in 2015 to a double murder, but who had subsequently appealed his death sentence all the way to the Arizona Supreme Court.
The brief as submitted by Katyal was initially focused on the capital sentencing regime in Arizona. Due to Supreme Court precedent, states must constrain the kinds of homicides which can be death-eligible. Many states deal with this requirement by imposing rules such that individuals can only be sentenced to death if their crimes are qualified by some number of "aggravating" factors. What constitutes an aggravating factor is generally at the discretion of individual state legislators. Katyal charged that Arizona's capital regime contained so many aggravating factors, of such vagueness, that any murder could be qualified as "aggravated."
But it was the second question Katyal submitted in his petition that attracted the attention of death penalty watchers: "whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency."
"I have spent the last few years with my team looking for cases that highlight the gross problems with the death penalty in practice, and this case is a perfect example of them," Katyal told BuzzFeed at the time. "We look forward to the Supreme Court's review of Mr. Hidalgo's petition."
The case had attracted significant attention among death penalty opponents and supporters, including a mention in an end-of-year piece from the New York Times's editorial board calling for capital punishment's swift abolition. The Los Angeles Times explicitly called for the Court to take up Hidalgo and overturn the death penalty in its own op-ed, published earlier in December.
Monday's denial of certiorari brings those hopes to an end, at least for now. Katyal seemed undeterred in his response to the Court's conclusions.
"Unfortunately the Supreme Court denied review in our death penalty challenge #hidalgo. I remain convinced that SCOTUS will come to recognize that the death penalty, as practically administered in this country, is unconstitutional. It may be lawful in theory, just not in practice," he wrote on Twitter.
Eighth Amendment challenges to the death penalty are nothing new. Indeed, in 1972, the Court shocked the nation by finding in Furman v. Georgia that capital regimes nationwide violated the amendment's prohibition of "cruel and unusual punishment," initiating a four-year execution moratorium which was eventually ended in 1976's Gregg v. Georgia.
Since Gregg, death penalty opponents have used the Eighth Amendment approach to take particular aspects of capital punishment to the Supreme Court, ending the death penalty for minors, the mentally insane, and rapists.
The original Hidalgo brief cites Gregg specifically, claiming, "The evidence is in. The long experiment launched by Gregg—in whether the death penalty can be administered within constitutional bounds—has failed. It has failed both in Arizona in particular and in the Nation more broadly."
This latest push for judicial abolition was doubtless partially in response to Justice Stephen Breyer's dissent in 2015's Glossip v. Gross, a case concerned with the Eighth Amendment licitness of a certain form of lethal injection. In his opposition to the five-justice majority's opinion, Breyer called for "full briefing on a more basic question: whether the death penalty violates the Constitution."
Breyer authored a statement regarding the denial of cert in Hidalgo as well. This time Breyer, joined by the Court's other liberal-leaning justices, concerned himself not with the death penalty per se, but specifically with Arizona's aggravating factors regime. While agreeing with the majority's decision not to grant cert, Breyer suggested that the court should perhaps consider hearing the aggravating factors issue once the evidentiary record was more developed.
Hidalgo is not the first capital case to come before the Court this term. In November, it declined to grant cert, that time unanimously, in a death penalty challenge in Dunn v. Madison, which would have considered whether or not the defendant's multiple strokes between his sentencing and scheduled execution rendered him unfit for death.
In concurring opinions to the Dunn denial, Justices Ruth Bader Ginsburg and Breyer reiterated their past concerns about the death penalty, calling for both a case better suited to address the issue that Dunn raised and, in Breyer's concurrence, "the root cause of the problem—the constitutionality of the death penalty itself."
The Court ultimately agreed to hear the same case, albeit under slightly different procedural terms, as Madison v. Alabama. That case is due for oral argument in the near future.