Kavanaugh, Barrett join DIG to spare Smith death penalty

The Supreme Court dismissed Alabama’s bid to execute Joseph Smith in Hamm v. Smith as “improvidently granted,” keeping a lower-court ruling that spared him from execution. The procedural split—5-4 with Brett Kavanaugh and Amy Coney Barrett siding with the thre

For Joseph Smith, the difference between a death sentence and a continued legal fight came down to a procedural vote—and the size of the split was the shock.

On Thursday, the Supreme Court dismissed Alabama’s appeal seeking to execute Smith for the 1997 murder of Durk Van Dam. The justices did not issue a full opinion backing or overturning the underlying legal arguments. Instead. the court ruled 5-4 that the case should be dismissed as “improvidently granted. ” the legal shorthand for when the justices decide—after granting review. reading the briefs. and hearing oral argument—that they should not have taken the case in the first place.

The practical result was immediate: the lower-court ruling sparing Smith from execution stayed in place. At a court where death-row cases rarely end in stays that blunt execution, the outcome was exceptional.

What made Thursday’s dismissal more striking wasn’t only the end result. It was the coalition. With six Republican appointees on the court who are typically aligned with efforts to move executions forward. the justices still split in a way that produced a bare majority made by Justices Brett Kavanaugh and Amy Coney Barrett joining the court’s three Democratic appointees against Alabama.

The justices had agreed to review the state’s appeal as it sought to execute Smith for the 1997 murder of Durk Van Dam. The issue framed for review was whether. and how. courts may consider the cumulative effect of multiple IQ scores in a prisoner’s claim that he is too intellectually disabled to be executed under Supreme Court precedent.

When the court issues a dismissal of this kind, it usually offers a straightforward, unsigned disposition. In this case, the main order came as “The writ of certiorari is dismissed as improvidently granted.” (“The writ of certiorari” refers to Alabama’s appeal.)

Even so, several justices wrote separately, offering a partial window into what the case exposed—and why they did not treat it as a clean procedural walkaway.

Justice Sonia Sotomayor. joined by Justice Ketanji Brown Jackson. filed a concurring opinion explaining why she agreed with the procedural dismissal. In her view. the majority was correct to dismiss the case because the evidentiary record and the lower court rulings were not sufficiently detailed for the justices to evaluate. Sotomayor wrote that weighing in at this stage would have risked the court overstepping.

But she also warned that she thought the dissenting justices’ reading of the court’s precedents—and the way courts should evaluate IQ scores—is “incomplete and potentially misleading.” Sotomayor said the court “is not equipped in this case to provide any meaningful guidance on how courts should assess multiple IQ scores.” She also pointed out that all the parties agreed “that the Eighth Amendment does not prescribe a single formula for weighing multiple IQ scores.” The Eighth Amendment bars cruel and unusual punishment.

The dissenting view Sotomayor responded to was authored by Justice Samuel Alito. Alito was joined in full by Justice Clarence Thomas, who also wrote his own solo dissent, and was joined largely by Justice Neil Gorsuch and Chief Justice John Roberts.

Alito argued that the court missed a chance to provide guidance to lower courts on how to evaluate IQ scores. “By instead remaining silent, the Court exacerbates the confusion that plagues our jurisprudence in this area,” Alito wrote. He added. “If this Court continues to shy away from opportunities to provide workable doctrine. we should not be surprised if petitions asking us to overrule Atkins. Hall. and Moore arrive at our doorsteps soon. ” referring to precedents protecting the intellectually disabled from execution.

Thomas’ solo dissent went further. He explicitly advocated for overturning precedent.

“To avoid execution, Smith tried to convince courts that he is not intelligent enough to be executed. Today, the Court rewards Smith’s efforts,” Thomas wrote. He argued that Smith’s case showed that the court’s 2002 ruling in Atkins v. Virginia—holding it is unconstitutional to execute an intellectually disabled person—“has bred only confusion and absurdity.” Thomas said “Nothing in the text or history of the Constitution supports Atkins. It should be overruled.”.

No other justice joined Thomas’ position.

Still. Thomas’ outlier stance landed in the same atmosphere as Alito’s broader warning for four justices that they should not be surprised if the Supreme Court is asked to overrule Atkins. Hall. and Moore if it continues to avoid giving “workable doctrine.” Thursday’s outcome suggests why those warnings carry weight: Kavanaugh and Barrett did not write separately on the procedural question. but the broader pattern the justices often follow in capital cases is that GOP appointees are more likely to side with their colleagues on execution when they vote on the merits rather than on process.

For Thursday’s dismissal to happen, it took four justices to grant review. Even with the procedural win for Smith, the court’s disagreement over the underlying issue has not disappeared—it’s just been postponed.

Sotomayor and Jackson viewed the record as too incomplete to justify guidance. Alito. joined by Thomas and largely by Gorsuch and Roberts. treated the court’s silence as a missed opportunity that fuels confusion. Thomas’ solo dissent went even further, directly urging that Atkins v. Virginia should be overruled.

Thursday’s DIG. then. does not resolve the national questions about how multiple IQ scores should be weighed in Eighth Amendment claims. It instead left Smith safe for now. while signaling that if the court takes the question up again with a more developed record—and has to decide the merits—the lineup could be very different.

Supreme Court Hamm v. Smith Alabama Joseph Smith Durk Van Dam death penalty DIG improvidently granted Kavanaugh Amy Coney Barrett Sotomayor Ketanji Brown Jackson Alito Clarence Thomas Atkins v. Virginia Hall Moore intellectual disability IQ scores Eighth Amendment