Amicus Curiae Brief — John Q. Hamm, Commissioner, Alabama Department of Corrections, Petitioner v. Joseph Clifton Smith

No. 24-872

In The

Supreme Court of the United States

COMMISSIONER, ALABAMA DEPARTMENT OF

CORRECTIONS,

Petitioner,

v.

JOSEPH CLIFTON SMITH,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit

BRIEF OF IDAHO, ARKANSAS, FLORIDA,

INDIANA, KANSAS, LOUISIANA,

MISSISSIPPI, MISSOURI, MONTANA,

NEBRASKA, NORTH DAKOTA, OHIO,

OKLAHOMA, SOUTH CAROLINA, SOUTH

DAKOTRA, TENNESSEE, TEXAS, UTAH, AND

THE ARIZONA LEGISLATURE AS AMICI

CURIAE IN SUPPORT OF PETITIONER

RAÚL R. LABRADOR

Attorney General

IDAHO OFFICE OF THE

ATTORNEY GENERAL

700 W. Jefferson St.

Suite 210

Boise, ID 83720

(208) 334-2400

alan.hurst@ag.idaho.gov

ALAN M. HURST

Solicitor General

Counsel of Record

MICHAEL A. ZARIAN

Deputy Solicitor General

GADER WREN

Assistant Solicitor General

Counsel for Amicus Curiae State of Idaho

[Additional Counsel Listed with Signature Block]

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................ii

INTERESTS OF AMICI ............................................. 1

INTRODUCTION AND

SUMMARY OF THE ARGUMENT ............................2

ARGUMENT ............................................................... 4

I. The Court Should Pare Back Its “Evolving

Standards Of Decency” Jurisprudence. ...........4

A. The “evolving standards of decency”

framework began as scarcely reasoned

dicta. ............................................................4

B. The “evolving standards of decency”

framework erodes the rule of law. ..............7

C. The Court should take steps to return

Eighth Amendment jurisprudence to

analyzing text, history, and tradition. .....14

II. The Eleventh Circuit’s Decision Invades

States’ Sovereign Functions. ..........................17

CONCLUSION .......................................................... 21

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Ames v. Ohio Dep’t of Youth Servs.,

605 U.S. 303 (2025) ................................................3

Atkins v. Virginia,

536 U.S. 304 (2002) .............................. 2, 3, 8, 9, 20

Bartkus v. Illinois,

359 U.S. 121 (1959) ..........................................1, 21

Baze v. Rees,

553 U.S. 35 (2008) ................................................. 14

Bucklew v. Precythe,

587 U.S. 119 (2019) ..............................................15

Calderon v. Thompson,

523 U.S. 538 (1998) ..............................................18

City of Grants Pass, Oregon v. Johnson,

603 U.S. 520 (2024) .................................. 15, 16, 21

Clark v. Arizona,

548 U.S. 735 (2006) ..............................................20

Coker v. Georgia,

433 U.S. 584 (1977) ..........................................9, 13

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) .................................. 12, 15, 16

Edmo v. Corizon, Inc.,

935 F.3d 757 (9th Cir. 2019)................................13

Estelle v. Gamble,

429 U.S. 97 (1976) ...................................... 1, 2, 7, 8

Farmer v. Brennan,

511 U.S. 825 (1994) ................................................8

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Ford v. Wainwright,

477 U.S. 399 (1986) ..........................................9, 20

Furman v. Georgia,

408 U.S. 238 (1972) ..............................................14

Glossip v. Gross,

576 U.S. 863 (2015) ................................................7

Graham v. Florida,

560 U.S. 48 (2010) ................................................11

Gregg v. Georgia,

428 U.S. 153 (1976) ..............................................15

Hall v. Florida,

572 U.S. 701 (2014) ........................................11, 21

Heath v. Alabama,

474 U.S. 82 (1985) ................................................18

Helling v. McKinney,

509 U.S. 25 (1993) ..................................................8

Hopkins v. Sec’y of State Delbert Hosemann,

76 F.4th 378 (5th Cir. 2023) ................................13

Kahler v. Kansas,

589 U.S. 271 (2020) ........................................18, 20

Kansas v. Garcia,

589 U.S. 191 (2020) ..............................................18

Kennedy v. Louisiana,

554 U.S. 407 (2008) ..............................................10

Leland v. Oregon,

343 U.S. 790 (1952) ..............................................19

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Marbury v. Madison,

5 U.S. 137 (1803) ..................................................14

Miller v. Alabama,

567 U.S. 460 (2012) ..................................... 3, 11, 14

Moore v. Texas,

581 U.S. 1 (2017) ...................................... 11, 12, 13

Oregon v. Ice,

555 U.S. 160 (2009) ..............................................19

Patterson v. New York,

432 U.S. 197 (1977) ..............................................19

Penry v. Lynaugh,

492 U.S. 302 (1989) ................................................9

Powell v. Texas,

392 U.S. 514 (1968) ........................................19, 20

Robinson v. California,

370 U.S. 660 (1962) ................................................8

Roper v. Simmons,

543 U.S. 551 (2005) ........................................10, 15

Shinn v. Ramirez,

596 U.S. 366 (2022) ..........................................4, 18

Stanford v. Kentucky,

492 U.S. 361 (1989) ..............................................10

Steamship Co. v. Emigration Comm’rs,

113 U.S. 33 (1885) ..................................................6

Trop v. Dulles,

356 U.S. 86 (1958) ..........................................5, 6, 7

v

TABLE OF AUTHORITIES—Continued

Page(s)

Trop v. Dulles,

239 F.2d 527 (2d Cir. 1956) ...................................5

Trozzi v. Lake Cnty., Ohio,

29 F.4th 745 (6th Cir. 2022) ..................................8

United States v. Grant,

9 F.4th 186 (3d Cir. 2021)..................................4, 7

United States v. Rahimi,

602 U.S. 680 (2024) ................................ 2, 6, 15, 17

United States v. Skrmetti,

145 S. Ct. 1816 (2025)....................................12, 13

Vasquez v. Hillery,

474 U.S. 254 (1986) ..........................................8, 13

Other Authorities

4 William Blackstone, Commentaries

(Joseph Chitty ed. 1826) ....................................... 15

J. Elliot’s Debates 111 (2d ed. 1876) ........................14

Judge Thomas M. Hardiman, Textualism and the

Eighth Amendment, HARV. J.L. & PUB. POL’Y PER

CURIAM 5 (2024) .............................................10, 13

THE FEDERALIST NO. 9 (Alexander Hamilton)

(Jacob E. Cooke ed., 1961) ...................................18

Tom Stacy, Cleaning Up the Eighth Amendment

Mess, 14 WM. & MARY BILL RTS. J. 475 (2005)....16

1

INTERESTS OF AMICI

Like other States, the States of Idaho, Arkansas,

Florida, Indiana, Kansas, Louisiana, Mississippi,

Missouri, Montana, Nebraska, North Dakota, Ohio,

Oklahoma,

South

Carolina,

South

Dakota,

Tennessee, Texas, Utah, and the Arizona Legislature

(“Amici States”), have a “historic right and obligation

. . . to maintain peace and order within their

confines.” Bartkus v. Illinois, 359 U.S. 121, 137

(1959). In discharging this obligation, many Amici

States have authorized capital punishment, and they

have the solemn responsibility to carry out death

sentences imposed according to their laws after a trial

by jury.

The Eleventh Circuit’s decision—like similar

decisions in other circuits—frustrates Amici States’

ability to fulfill their duty. Unfortunately,

obstructions like this are not new. Amici States have

often encountered previously unknown Eighth

Amendment obstacles ever since this Court bound the

Amendment to “the evolving standards of decency

that mark the progress of a maturing society.” Estelle

v. Gamble, 429 U.S. 97, 102 (1976). That framework

has become a potent tool for judges to rewrite

democratically enacted state laws.

Amici States wish to restore their authority to

choose and apply their own penological policies and

rules. Amici States celebrate the Constitution’s

protections against cruel and unusual punishments,

but the text, history, and tradition of the Eighth

Amendment do not license the sorts of intrusion into

State policy that have occurred under the “evolving

2

standards” framework. The Eleventh Circuit’s

extension of Atkins v. Virginia, 536 U.S. 304, 312

(2002)—which itself was the product of the “evolving

standards” framework—must be undone if the Court

is to move towards restoring the proper balance of

federalism prescribed by the Constitution.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Eleventh Circuit’s decision not only

“departed from precedent,” as Petitioner has capably

explained, Pet. Br. at 32; it’s also a symptom of a

deeper problem in this Court’s Eighth Amendment

jurisprudence. Nearly 50 years ago, the Court decided

to tie the Amendment’s scope to “the evolving

standards of decency that mark the progress of a

maturing society,” Estelle v. Gamble, 429 U.S. 97, 102

(1976), an ahistorical—indeed, affirmatively antihistorical—standard that asks judges to consult their

own sense of morality or to divine the current

prevailing morality of the People. In so doing, the

Court unmoored the Eighth Amendment from the

considerations that ordinarily inform constitutional

decision-making—namely,

“text,

history,

and

tradition.” United States v. Rahimi, 602 U.S. 680, 714

(2024) (Kavanaugh, J., concurring).

Without these ordinary indicia of constitutional

meaning to anchor the Eighth Amendment’s

interpretation, courts are left with few objective

grounds for their decisions. They can exhaust the

reasoning of precedent (like Atkins), but when that

reasoning runs out, they will eventually rely on the

same sorts of considerations as other “evolving

standards of decency” cases—like the views of other

3

jurisdictions, the views of medical associations, and

the judges’ own sense of morality. This lack of any

“principled way to resolve doctrinal ambiguities”

plagues all “atextual . . . judge-made doctrines.” Ames

v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 313, 315

(2025) (Thomas, J., concurring).

The failings of the “evolving standards of decency”

framework were on full display in this case. Although

the Eleventh Circuit provided little explanation, its

decision appears to have turned on the panel’s belief

that it would be unethical to execute someone given

any chance that the person is intellectually disabled—

even though Alabama made its own moral judgment

that the person must prove his intellectual disability

to avoid capital punishment. Considerations like the

text, history, and tradition of the Eighth Amendment

certainly played no role in the Eleventh Circuit’s

decision. But given Atkins’ origin, there’s no way they

could have.

While some have feared that the “evolving

standards of decency” framework “has no discernible

end point,” Miller v. Alabama, 567 U.S. 460, 501 (2012)

(Roberts, C.J., dissenting), the Court can begin slowing

its momentum now by refusing to extend Atkins and

reversing the Eleventh Circuit.

Reversing the Eleventh Circuit would also fulfill

Atkins’ promise to “leave to the State[s] the task of

developing appropriate ways to enforce [Atkins’]

constitutional restriction upon [their] execution of

sentences.” Atkins v. Virginia, 536 U.S. 304, 317

(2002). The Court left these matters to the States

because “[t]he power to convict and punish criminals

lies at the heart of the States’ residuary and

4

inviolable sovereignty.” Shinn v. Ramirez, 596 U.S.

366, 376 (2022) (cleaned up). As the Eleventh

Circuit’s decision has shown, however, federal courts

all too often ignore that sovereignty and make

decisions that the Constitution reserves for States.

ARGUMENT

I. The Court Should Pare Back Its “Evolving

Standards Of Decency” Jurisprudence.

The Eleventh Circuit’s decision has its roots in a

single line of dicta from the 1950s—a line the Court

later made into the Eighth Amendment’s guiding

star. But the Court should never have told judges to

chase after the country’s “evolving standards of

decency.” The concept was invented out of whole cloth,

has no support in the text or history of the Eighth

Amendment, and subverts the rule of law. It is time

for the Court to move away from that framework and

begin

harmonizing

its

Eighth

Amendment

jurisprudence with that of other amendments.

A.

The “evolving standards of decency”

framework began as scarcely reasoned

dicta.

The story of the Court’s Eighth Amendment

jurisprudence begins like many other novel

constitutional announcements. A plurality of the

Warren Court unnecessarily “waxed historical” about

the Eighth Amendment, see United States v. Grant, 9

F.4th 186, 202 (3d Cir. 2021) (Hardiman, J.,

concurring), and declared for the first time that “[t]he

Amendment must draw its meaning from the evolving

standards of decency that mark the progress of a

5

maturing society.” Trop v. Dulles, 356 U.S. 86, 101

(1958) (plurality). That stray line of dicta from Trop

v. Dulles was later repurposed to be the Amendment’s

overarching framework.

In 1958, this Court considered whether American

private Albert Trop had lost his national citizenship

as a consequence of being convicted of desertion in

time of war by a court-martial. Trop, 356 U.S. at 88 &

n.1. The Second Circuit, with Judge Learned Hand

writing for the majority, interpreted the relevant

statute and concluded that Trop had lost his

citizenship, rejecting the private’s Due Process

challenge to the statute in the process. Trop v. Dulles,

239 F.2d 527, 529 (2d Cir. 1956).

In a 4-1-4 decision, this Court reversed. Chief

Justice Earl Warren’s plurality opinion and Justice

Brennan’s concurring opinion both concluded that

“citizenship . . . cannot be divested in the exercise of”

“the general powers of the National Government.”

Trop, 356 U.S. at 92; id. at 105 (Brennan, J.,

concurring) (“expatriat[ing] the wartime deserter . . .

lies beyond Congress’ power”). On that “ground

alone,” the Court acknowledged it should reverse. Id.

at 93.

But Chief Justice Warren did not stop there.

Instead, noting that the Court had “had little occasion

to give precise content to the Eighth Amendment,” id.

at 100, he decided to apply the Amendment to the case

even though Trop had not pleaded or argued the issue

before the district court and neither the district nor

the circuit had addressed it. 239 F.2d at 529–30. What

should have been a clear instance of constitutional

avoidance, see Steamship Co. v. Emigration Comm’rs,

6

113 U.S. 33, 39 (1885), was instead embraced as an

invitation to begin a new and completely unnecessary

line of constitutional precedent.

In interpreting the Eighth Amendment, Chief

Justice Warren’s plurality opinion barely addressed

the text. Instead, it quickly declared that the words of

the Amendment were “not precise” and that its “scope

is not static,” so courts “must draw its meaning from

the evolving standards of decency that mark the

progress of a maturing society.” Trop, 356 U.S. at

100–01. On that understanding, the plurality

invalidated

the

statute’s

punishment

of

denaturalization for wartime deserters because

denaturalization is “a form of punishment more

primitive than torture, for it destroys for the

individual the political existence that was centuries

in the development.” Id. at 101.

The plurality ignored the Amendment’s history

too, looking instead to “the international community

of democracies.” Id. at 102. Historically, desertion had

been a capital offense in America “from the first year

of Independence.” Id. at 125 (Frankfurter, J.,

dissenting) (“Is constitutional dialectic so empty of

reason that it can be seriously urged that loss of

citizenship is a fate worse than death?”). But rather

than base its reasoning in “pre-ratification American

laws and practices [that] formed part of the

foundation on which the Framers constructed the

Constitution and Bill of Rights,” Rahimi, 602 U.S. at

720 (Kavanaugh, J., concurring), the Trop plurality

preferred to give weight to the current views of

“civilized nations of the world,” which—according to a

“United Nations’ survey”—largely did not “impose

7

denaturalization as a penalty for desertion.” 356 U.S.

at 102–03.

The “ ‘evolving standards of decency’ . . . phrase

went unmentioned in [this] Court for ten years after

Trop, until it surfaced in a footnote in a death-penalty

case,” after which “it was then quoted only in passing

in seven death-penalty cases in the 1970s.” Grant, 9

F.4th at 202–03 (Hardiman, J., concurring). But in

1976, the Court fully entrenched the phrase as

constitutional doctrine by holding that “punishments

which are incompatible with ‘the evolving standards

of decency that mark the progress of a maturing

society’ ” violate the Eighth Amendment. Estelle v.

Gamble, 429 U.S. 97, 102 (1976) (cleaned up).

Although the Trop plurality had merely said that the

Eighth Amendment must “draw its meaning” from

the evolving standards of decency, Estelle turned

“Trop’s dicta [in]to a constitutional test.” Grant, 9

F.4th at 203 (Hardiman, J., concurring).

In the following years, that test has been “a

standard bearer for the view that the Constitution’s

meaning changes over time.” Id. And in one Justice’s

assessment, the “evolving standards of decency”

framework “has caused more mischief . . . than any

other that comes to mind.” Glossip v. Gross, 576 U.S.

863, 899 (2015) (Scalia, J., concurring).

B.

The “evolving standards of decency”

framework erodes the rule of law.

Chief Justice Warren may not have intended his

homiletic words to become a barometer for all

constitutionally permissible punishments, but they

have. And they have been used to justify the ever-

8

encroaching reach of the Eighth Amendment and to

overturn precedent after precedent. Our Constitution

made the law king, and the rule of law means that

“bedrock principles [ ] founded in the law”—not “the

proclivities of individuals”—govern. Vasquez v.

Hillery, 474 U.S. 254, 265 (1986). But the “evolving

standards of decency” jurisprudence is contrary to

basic rule-of-law norms: it invites judges to follow

their own sensibilities rather than objective

standards, it cannot be applied consistently, and it

lacks notice and predictability.

A few cases suffice to show the framework’s

volatile character. Start with Estelle. Before that case,

the Court understood that the Eighth Amendment

prohibited the affirmative “infliction of cruel and

unusual punishment.” Robinson v. California, 370

U.S. 660, 666 (1962) (emphasis added). But Estelle

used the “evolving standards” framework to extend

the Eighth Amendment to prohibit the government

from failing to act. 429 U.S. at 104. That extension

lacked constitutional grounding, and the Court later

attempted to “stabilize Estelle’s flimsy foundation” by

converting it into a two-part test. Trozzi v. Lake Cnty.,

Ohio, 29 F.4th 745, 751–52 (6th Cir. 2022) (citing

Farmer v. Brennan, 511 U.S. 825, 834 (1994)); see also

Helling v. McKinney, 509 U.S. 25, 42 (1993) (Thomas,

J., dissenting) (“I seriously doubt that Estelle was

correctly decided.”).

The framework picked up steam at the turn of the

21st century. As relevant here, the Court held in

2002—without textual or historical support, Atkins,

536 U.S. at 337 (Scalia, J., dissenting)—that the

Eighth Amendment prohibits the execution of

9

intellectually disabled persons. Id. at 321. That

decision overturned the Court’s holding in Penry v.

Lynaugh from just thirteen years prior, when the

Court addressed the very same question and held the

opposite. 492 U.S. 302, 340 (1989). Penry’s short-lived

holding should not have come as a surprise, given that

its closing sentences noted that “a national consensus

against execution of the mentally retarded may

someday emerge reflecting the ‘evolving standards of

decency that mark the progress of a maturing

society.’ ” Id.

Still, Atkins marked a significant expansion in the

Court’s

“evolving

standards

of

decency”

jurisprudence. Before Atkins, the Court generally

discerned the country’s “standards of decency” by

surveying the fifty States’ laws, id. at 331 (“The

clearest and most reliable objective evidence of

contemporary values is the legislation enacted by the

country’s legislatures.”), and it would hold a state law

unconstitutional if it was contrary to that of most

States. E.g., Ford v. Wainwright, 477 U.S. 399, 408

(1986) (“no State in the union permits the execution

of the insane”); Coker v. Georgia, 433 U.S. 584, 595–

96 (1977) (plurality opinion) (49 of 50 States

prohibited death penalty for rape of an adult). In

Atkins, however, the Court discarded any demand for

a majority view. Even though only 18 of 38 deathpenalty States prohibited the execution of the

intellectually disabled, the Court declared that “[i]t is

not so much the number of these States that is

significant but the consistency of the direction of

change.” Atkins, 536 U.S. at 315; see also id. at 343–

44 (Scalia, J., dissenting).

10

Atkins’ shift marked a decisive step towards

empowering judges to “substitut[e] judicial

preferences about penological policy for the will of

the People.” Judge Thomas M. Hardiman,

Textualism and the Eighth Amendment, HARV. J.L.

& PUB. POL’Y PER CURIAM 5, 6 (2024). By swapping

out an objective standard like a true national

consensus for a flimsier consideration like the

“direction of change,” the Court left more play in the

joints of the “evolving standards” inquiry for a

judge’s own proclivities to enter the equation.

It wasn’t long before a judge’s own proclivities

would become an explicit part of the “evolving

standards” framework. Just three years after Atkins,

the Court overturned another of its recent precedents

and held that the Eighth Amendment prohibits

capital punishment for juvenile murderers. Roper v.

Simmons, 543 U.S. 551, 578 (2005), overturning

Stanford v. Kentucky, 492 U.S. 361, 380 (1989). The

Court again relied on 18 of 38 States with the death

penalty. Roper, 543 U.S. at 564. This time, the Court

explained that “objective indicia of consensus” are just

a starting point—the Court must also “exercise [its]

own independent judgment” in assessing whether the

punishment sufficiently comports with standards of

decency. Id.

More state laws would quickly fall prey to the

“evolving standards” framework following Roper. In

2008, the Court held that executing child rapists

violates the Eighth Amendment. Kennedy v.

Louisiana, 554 U.S. 407, 434 (2008). In 2010, the

Court held that life-without-parole sentences for nonhomicide juvenile offenders violated the Eighth

11

Amendment. Graham v. Florida, 560 U.S. 48, 82

(2010). And in 2012, the Court held that mandatory

life-without-parole sentences for juveniles—even

those convicted of murder—violated the Eighth

Amendment. Miller, 567 U.S. at 479. Each of these

decisions were 5-vote majorities with sharp dissents.

In 2014, the Court concentrated the “evolving

standards” inquiry on a different consideration: the

views of professional medical associations. In Hall v.

Florida, the Court held that States were required to

consider the standard error of measurement (SEM) of

IQ tests when using IQ scores to determine intellectual

disability under Atkins. 572 U.S. 701, 722 (2014). Only

12 of 31 death penalty States required consideration of

the SEM, id. at 728–29 (Alito, J., dissenting), but the

Court was swayed by the view of “medical experts” that

IQ tests weren’t precise enough. Id. at 723.

Apparently, the views of these “medical experts” were

a better reflection of “the Nation we aspire to be” than

the democratically expressed views of the People

themselves. Id. at 708, 723.

Three years later, the Court focused its attention

exclusively on the views of medical experts. In Moore

v. Texas, without considering any other States’ laws,

the Court held that States’ determination of

intellectual disability must comport with “[t]he

medical community’s current standards.” 581 U.S. 1,

12

20 (2017).1 Three dissenting justices raised concern

that the decision had “craft[ed] a constitutional

holding based solely on what [the Court] deem[ed] to

be medical consensus about intellectual disability,”

and had “abandon[ed] the usual mode of analysis” by

not “even considering objective indicia of society’s

standards reflected in the practices among the

States.” Id. at 21–22 (Roberts, C.J., dissenting).

It is concerning enough that Hall and Moore leave

the future of the Eighth Amendment in the hands of

faceless medical experts. “[E]xperts have no license to

countermand the ‘wisdom, fairness, or logic of

legislative choices.’ ” United States v. Skrmetti, 145 S.

Ct. 1816, 1840 (2025) (Thomas, J., concurring)

(cleaned up). Nor do experts “shed light on the

meaning of the Constitution.” Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 272–73 (2022).

Instead, “the American people and their

representatives are entitled to disagree with those

who hold themselves out as experts.” Skrmetti, 145 S.

Ct. at 1840 (Thomas, J., concurring).

But the journey from Estelle to Moore is equally

concerning from a rule of law perspective. The twists

and turns in “evolving standards” jurisprudence show

that the framework cannot be applied with any

consistency or with any respect for precedent. The

1 Notably, the Court did not specify which medical standards

must be followed. Moore, 581 U.S. at 13; id. at 29 (Roberts, C.J.,

dissenting) (noting that Moore provided a “lack of guidance” for

States applying Atkins). States therefore do not know whether

to apply American Psychological Association standards,

American Association on Intellectual and Developmental

Disabilities standards, or a different set of medical standards.

13

framework explicitly invites “the proclivities of

individuals ” into the constitutional equation.

Vasquez, 474 U.S. at 265–66. And there can be no

doctrinal predictability when the inquiry will turn on

some unknown combination of changes in other

States’ laws, judges’ own sense of decency, and the

latest views of medical professionals—which

themselves are not always unanimous. Moore, 581

U.S. at 31 (Roberts, C.J., dissenting).

The erosion of rule of law norms has resulted in

surprising “evolving standards of decency” results

even outside of the death penalty context. The Ninth

Circuit has cited “evolving standards of decency” in

concluding that the Eighth Amendment guaranteed a

prisoner the right to “gender confirmation surgery.”

Edmo v. Corizon, Inc., 935 F.3d 757, 797, 800 & n.21

(9th Cir. 2019). And the Fifth Circuit applied the

same framework to prohibit “punishing felons by

permanently barring them from the ballot box” before

it reversed the decision en banc. Hopkins v. Sec’y of

State Delbert Hosemann, 76 F.4th 378, 407 (5th Cir.

2023), rev’d, 108 F.4th 371 (5th Cir. 2024), cert.

denied, 145 S. Ct. 1138 (2025).

Any expectation that the “evolving standards of

decency” jurisprudence is just a modest method to

address modern punishments is now naïve. The

framework is not grounded in “the text [or] original

meaning of the Eighth Amendment,” Hardiman,

HARV. J.L. & PUB. POL’Y PER CURIAM at 8, and has lost

any tie to “objective factors.” Coker, 433 U.S. at 592.

Eighth Amendment jurisprudence instead is

hopelessly uncertain, merely reflecting “the

subjective views of individual Justices” and medical

14

associations who seek to “shap[e] the societal

consensus of tomorrow” instead of “divining the

societal consensus of today.” Id. (first quote); Miller,

567 U.S. at 509 (Thomas, J., dissenting) (second and

third quotes).

C.

The Court should take steps to return

Eighth Amendment jurisprudence to

analyzing text, history, and tradition.

The Court should recenter its Eighth Amendment

jurisprudence on text, history, and tradition, instead

of continuing to tempt judges to exercise their own

will or delegating the question to the medical

community. “It is emphatically the province and duty

of the judicial department to say what the law is,” not

what it should be. Marbury v. Madison, 5 U.S. 137,

177 (1803) (emphasis added).

Text, history, and tradition paint a reasonably

clear picture of what the Eighth Amendment

prohibits. The history of those enactments confirms

that “the evil the Eighth Amendment targets is

intentional infliction of gratuitous pain” through

“torturous punishments.” Baze v. Rees, 553 U.S. 35,

101–02 (2008) (Thomas, J., concurring); Furman v.

Georgia, 408 U.S. 238, 377 & n.3 (1972) (Burger, C.J.,

dissenting) (“The records of the debates in several of

the state conventions called to ratify the 1789 draft

Constitution submitted prior to the addition of the

Bill of Rights show that the Framers’ exclusive

concern was the absence of any ban on tortures”)

(citing J. Elliot’s Debates 111 (2d ed. 1876)). In

particular, the Founders intended to prohibit “modes

of punishment akin to those” “barbarous” punishments

that had “dwindled away” by the time of Ratification.

15

Id. at 97, 99 (cleaned up). Such punishments included

“embowelling alive, beheading, and quartering.” 4

William Blackstone, Commentaries 376 (Joseph Chitty

ed. 1826).

That’s not to say that the Eighth Amendment has

nothing to say about punishments that were not

contemplated in 1791—all agree that it does. See

Gregg v. Georgia, 428 U.S. 153, 173 (1976); Roper, 543

U.S. at 589 (O’Connor, J., dissenting); Bucklew v.

Precythe, 587 U.S. 119, 152 (2019) (Thomas, J.,

concurring). But embracing an “evolving standards”

framework is not the only way to protect the

Amendment from becoming “little more than a dead

letter today.” Roper, 543 U.S. at 589 (O’Connor, J.,

dissenting). The Court has been able to address

modern situations when applying other amendments

without casting off text, history, and tradition, e.g.,

Rahimi, 602 U.S. at 691–92, and can do the same with

the Eighth Amendment.

Fortunately, the Court has already signaled an

interpretive course correction in Eighth Amendment

jurisprudence. In 2019, the Court held that the

Eighth Amendment must be interpreted according to

its “original and historical understanding.” Bucklew,

587 U.S. at 129. And just last year, the Court rejected

an expansion of the Eighth Amendment that sat

“uneasily with the Amendment’s terms” and “original

meaning.” City of Grants Pass, Oregon v. Johnson,

603 U.S. 520, 549 (2024). These “standard grounds for

constitutional decisionmaking” have been repeatedly

reaffirmed as the proper foundation of all

constitutional interpretation. Dobbs, 597 U.S. at 279.

16

The Court can stay the new course by continuing

to undercut the “evolving standards of decency”

framework. In so doing, it will dramatically reduce

arbitrary judicial decision-making. See Tom Stacy,

Cleaning Up the Eighth Amendment Mess, 14 WM. &

MARY BILL RTS. J. 475, 476 (2005) (Eighth

Amendment jurisprudence “stands in disarray”). As

experience has shown, when there is no “text or

history” to “confine or guide” judicial review, courts

are “left to write into the Constitution [their] own

formulas, many of which would likely prove

unworkable in practice” and “would interfere with

essential considerations of federalism that reserve to

the States primary responsibility for drafting their

own criminal laws.” Grants Pass, 603 U.S. at 551

(cleaned up). This has been the case with every other

constitutional standard invented out of whole cloth.

See Dobbs, 597 U.S. at 281, 286 (undue burden

standard for right to abortion could not be “applied in

a consistent and predictable manner” and charged

judges with the “unwieldy and inappropriate task” of

making policy); Ames v. Ohio Dep’t of Youth Servs.,

605 US 305, 326 (2025) (Thomas, J., concurring)

(judge-created legal standards “generate complexity,

confusion, and erroneous results”).

That arbitrary decision-making was on full display

in the Eleventh Circuit’s decision below. Given the lack

of instruction from Atkins and its progeny on whether

States may require capital defendants to carry the

burden of proof to show intellectual disability, the

court decided with little explanation that the State

could not carry out an execution if there was any

chance the person was intellectually disabled. The

court gave no regard to text, history, tradition, or the

17

moral judgment of the people of Alabama—apparently

opting instead to consult its own sense of fairness. This

is the inevitable result when the Court adopts a

framework like “evolving standards” that affirmatively

eschews text, history, and tradition in favor of judgediscerned morality.

Because no party has asked for the “evolving

standards” framework or Atkins to be overruled, this

case may not present the Court with a chance to

harmonize its Eighth Amendment jurisprudence with

the Amendment’s original meaning. Still, when this

Court has been asked to apply atextual precedents, it

has used the text, history, and tradition of the

Constitution “as a gravitational pull on the Court’s

interpretation of [the] precedent.” Rahimi, 602 U.S.

730 (Kavanaugh, J., concurring). That “gravitational

pull” should ensure that Atkins is not extended

further. At a minimum, it should draw the Court

towards recentering the evolving standards analysis

on a more federalism-based standard like consensus

among the States, and not medical consensus or the

moral views of judges. See Pet. Br. at 29–32.

II. The Eleventh Circuit’s Decision Invades

States’ Sovereign Functions.

Paring back the “evolving standards of decency”

framework will reduce the role of federal courts in

determining the appropriate punishment for criminal

offenders. At the same time, it will restore States to

their “paramount role . . . in setting standards of

criminal responsibility” and deciding “when a person

should be held criminally accountable for his

antisocial deeds.” Kahler v. Kansas, 589 U.S. 271, 280

(2020) (cleaned up).

18

“From the beginning of our country, criminal law

enforcement has been primarily a responsibility of the

States.” Kansas v. Garcia, 589 U.S. 191, 212 (2020).

Ratification did not change that. “The power to

convict and punish criminals lies at the heart of the

States’ residuary and inviolable sovereignty.” Shinn,

596 U.S. at 376 (cleaned up); Heath v. Alabama, 474

U.S. 82, 93 (1985) (“The Constitution leaves in the

possession of each State ‘certain exclusive and very

important portions of sovereign power,’ ” and

“[f]oremost among” them is “the power to create and

enforce a criminal code”) (quoting THE FEDERALIST

NO. 9, at 55 (Alexander Hamilton) (Jacob E. Cooke

ed., 1961)).

However, “the power of a State to pass laws

means little if the State cannot enforce them.”

Calderon v. Thompson, 523 U.S. 538, 556 (1998)

(cleaned up). States have an obligation to provide for

the security of their citizens, and society, particularly

victims of crime, rightly expects that its “moral

judgment[s] will be carried out.” Shinn, 596 U.S. at

376. “To unsettle these expectations is to inflict a

profound injury to the powerful and legitimate

interest in punishing the guilty.” Id. at 376–77.

The Court therefore has consistently been careful

not to impose constitutional standards that interfere

with States’ enforcement of criminal laws. For

example, the Court refused to hold that Due Process

prohibits a State from placing the burden on criminal

defendants to prove an extreme emotional

disturbance, reasoning that it “should not lightly

construe the Constitution so as to intrude upon the

administration of justice by the individual States.”

19

Patterson v. New York, 432 U.S. 197, 201 (1977).

Likewise, the Court declined to extend Apprendi’s

limitations on States’ ability to set sentencing

standards because of “States’ interest in the

development of their penal systems, and their historic

dominion in this area.” Oregon v. Ice, 555 U.S. 160,

170–71 (2009).

The Court has been particularly reluctant to

establish constitutional standards of criminal

responsibility regarding a defendant’s mental

accountability. As the Court explained long ago,

“[n]othing could be less fruitful than for this Court to

be impelled into defining some sort of insanity test in

constitutional terms.” Powell v. Texas, 392 U.S. 514,

536 (1968) (plurality) (rejecting addiction as a

constitutional defense to punishment for otherwise

voluntary conduct). Instead, “doctrine[s] of criminal

responsibility” must remain “the province of the

States.” Id. at 534, 536.

And the Court has held that line time and again.

In 1958, it rejected an invitation to “require the

states” to use a particular insanity test because the

choice of test rested on “questions of basic policy.”

Leland v. Oregon, 343 U.S. 790, 801 (1952); id. at 803

(Frankfurter, J., dissenting) (agreeing that “it would

be indefensible to impose upon the States . . . one test

rather than another for determining criminal

culpability”). It did the same thing half a century

later, reasoning that States have the “traditional . . .

capacity to define crimes and defenses,” so “the

insanity rule . . . is substantially open to state choice.”

Clark v. Arizona, 548 U.S. 735, 749, 752 (2006). And

it rejected the argument a third time just a few years

20

ago. Kahler, 589 U.S. at 297 (“That choice is for

Kansas to make”).

It’s easy to see why the Eighth Amendment should

not be rewritten to impose a single conception of

mental accountability. Whether the question is

insanity or intellectual disability, determining

standards of criminal responsibility will involve

assessing enormous amounts of psychological

research, which contain “perennial gaps” and

“uncertainties.” Kahler, 589 U.S. at 280. “Even as some

puzzles get resolved, others emerge,” causing “differing

opinions about how far, and in what ways, mental

illness,” for example, “should excuse criminal conduct.”

Id. “[F]ormulating a constitutional rule would reduce,

if not eliminate, [the States’] fruitful experimentation,

and freeze the developing productive dialogue between

law and psychiatry into a rigid constitutional mold.”

Powell, 392 U.S. at 536–37.

Of course, Atkins imposed a standard of criminal

responsibility based on a particular conception of

mental accountability. But even in doing so, it

resolved that it would leave the task of “determining

which offenders are in fact” intellectually disabled to

the States—“[a]s was [its] approach . . . with regard

to insanity.” 536 U.S. at 317 (citing Ford, 477 U.S.

399). The Court promised to “leave to the States the

task of developing appropriate ways to enforce the

constitutional restriction upon their execution of

sentences.” Id. (cleaned up).

Hall and Moore failed to make good on Atkins’

promise to let States decide which persons are

intellectually disabled, outsourcing the power to set

standards to medical associations instead. But now is

21

the time for the Court to correct course and restore

States’ sovereign authority. Many aspects of

determining which persons are intellectually disabled

are certainly “complicated,” Hall, 572 U.S. at 714, but

it is States, and not medical associations, that have the

“historic right and obligation . . . to maintain peace

and order within their confines.” Bartkus v. Illinois,

359 U.S. 121, 137 (1959). As this Court explained just

last term, “questions about whether an individual who

has committed a proscribed act with the requisite

mental state should be relieved of responsibility due to

a lack of moral culpability are generally best resolved

by the people and their elected representatives.”

Grants Pass, 603 U.S. at 552 (cleaned up).

By deciding for itself the proper burden of proof to

determine intellectual disability, the Eleventh Circuit

ignored the space this Court reserved for States. The

Court should reverse the decision below and restore

States’ power to decide these questions.

CONCLUSION

For the foregoing reasons, the Court should

reverse the Eleventh Circuit’s decision.

22

Respectfully submitted,

RAÚL R. LABRADOR

Attorney General

IDAHO OFFICE OF THE

ATTORNEY GENERAL

700 W. Jefferson St.

Suite 210

Boise, ID 83720

(208) 334-2400

alan.hurst@ag.idaho.gov

ALAN M. HURST

Solicitor General

Counsel of Record

MICHAEL A. ZARIAN

Deputy Solicitor General

GADER WREN

Assistant Solicitor General

Counsel for Amicus Curiae State of Idaho

August 11, 2025

23

ADDITIONAL COUNSEL

TIM GRIFFIN

Attorney General

State of Arkansas

DREW H. WRIGLEY

Attorney General

State of North Dakota

JAMES UTHMEIER

Attorney General

State of Florida

DAVE YOST

Attorney General

State of Ohio

THEODORE E. ROKITA

Attorney General

State of Indiana

GENTNER DRUMMOND

Attorney General

State of Oklahoma

KRIS KOBACH

Attorney General

State of Kansas

ALAN WILSON

Attorney General

State of South Carolina

LIZ MURRILL

Attorney General

State of Louisiana

MARTY JACKLEY

Attorney General

State of South Dakota

LYNN FITCH

Attorney General

State of Mississippi

JONATHAN SKRMETTI

Attorney General

State of Tennessee

ADNREW BAILEY

Attorney General

State of Missouri

KEN PAXTON

Attorney General

State of Texas

AUSTIN KNUDSEN

Attorney General

State of Montana

DEREK BROWN

Attorney General

State of Utah

MICHAEL T. HILGERS

Attorney General

State of Nebraska

24

WARREN PETERSON

President of the Senate

State of Arizona

STEVE MONTENEGRO

Speaker of the House of

Representatives

State of Arizona

By counsel:

Rusty D. Crandell

Majority General

Counsel

Arizona State Senate

1700 W. Washington St.

Phoenix, Arizona 85007

rcrandell@azleg.gov

(602) 926-3137

By counsel:

Linley Wilson

Majority General

Counsel

Arizona House of

Representatives

1700 W. Washington St.

Phoenix, Arizona 85007

lwilson@azleg.gov

(602) 926-5418