The Supreme Court this morning handed down an opinion in Madison v. Alabama, 17-7505 (S. Ct. Feb. 27, 2019) (available here), a case concerning the distinctive Eighth Amendment jurisprudence addressing whether a defendant is competent to be executed. The ruling in the case is 5-3, as Justice Kavanaugh had not yet joined the Court at the time the case was argued. Justice Kagan delivered the opinion of the Court, which was joined by the Chief Justice as well as Justices Ginsburg, Breyer and Sotomayor. Here is how the opinion gets started:
The Eighth Amendment, this Court has held, prohibits the execution of a prisoner whose mental illness prevents him from “rational[ly] understanding” why the State seeks to impose that punishment. Panetti v. Quarterman, 551 U.S. 930, 959 (2007). In this case, Vernon Madison argued that his memory loss and dementia entitled him to a stay of execution, but an Alabama court denied the relief. We now address two questions relating to the Eighth Amendment’s bar, disputed below but not in this Court. First, does the Eighth Amendment forbid execution whenever a prisoner shows that a mental disorder has left him without any memory of committing his crime? We (and, now, the parties) think not, because a person lacking such a memory may still be able to form a rational understanding of the reasons for his death sentence. Second, does the Eighth Amendment apply similarly to a prisoner suffering from dementia as to one experiencing psychotic delusions? We (and, now, the parties) think so, because either condition may — or, then again, may not — impede the requisite comprehension of his punishment. The only issue left, on which the parties still disagree, is what those rulings mean for Madison’s own execution. We direct that issue to the state court for further consideration in light of this opinion.
Justice Alito filed a dissenting opinion, which Justices Thomas and Gorsuch joined, and starts with these pointed passages:
What the Court has done in this case makes a mockery of our Rules.
Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitutional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional.
After persuading the Court to grant review of this question, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental conditions, cannot provide a basis for such a claim. See Brief for Petitioner 16.
This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition — not even a hint. Nor is this question fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question.
Counsel’s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e.g., Visa, Inc. v. Osborn, 580 U.S. ___ (2016); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015). We should do that here.
Instead, the majority rewards counsel’s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that petitioner claims it took.
As all Court watchers know, "death is different" not only for Eighth Amendment jurisprudence but also for how the Justices approach these cases procedurally. I suspect Justice Alito is not surprised that some fellow Justices are approaching a capital case in a unique way, but I wonder if he is surprised that the Chief Justice provides the key swing vote for the defendant here.
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