Has SCOTUS Evolved Beyond the Evolving Standards of Decency?
The Warren Court — the period from 1953 to 1969 when Earl Warren was chief justice — is recognized as one of the most progressively liberal U.S. Supreme Court periods. Among other landmark decisions, the Warren Court decided Mapp v. Ohio, 367 U.S. 643 (1961) (applying the Fourth Amendment exclusionary rule to the states); Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that under the Sixth and 14th Amendments an indigent criminal defendant has the right to the appointment of counsel); Brady v. Maryland, 373 U.S. 83 (1963) (holding that the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment); Massiah v. United States, 377 U.S. 201 (1964) (prohibiting the use at trial of deliberately elicited statements from the defendant by government agents after the Sixth Amendment right to counsel attaches); Miranda v. Arizona, 384 U.S. 436 (1966) (holding that a defendant must waive certain rights — the Miranda waiver — before the government can use at trial statements obtained from a defendant under custodial interrogation); and Terry v. Ohio, 392 U.S. 1 (1968) (not a progressive opinion, but one of the most consequential Fourth Amendment cases ever, permitting a brief seizure and frisk of a suspect based on reasonable, articulable suspicion).
Many of these cases continue to be bedrocks of criminal law and practice. However, one other Warren Court decision may have recently gone the way of Roe and Chevron, but with much less hullabaloo.
In 1958, the Warren Court decided Trop v. Dulles, 356 U.S. 86 (1958), which concerned whether it constitutes cruel and unusual punishment under the Eighth Amendment to strip a native-born American of citizenship because of a conviction by court-martial for wartime desertion. In a plurality opinion, Chief Justice Warren concluded such punishment was cruel and unusual, reasoning that “the words of the [Eighth] Amendment are not precise, and that their scope is not static.”[1] He went on, in oft-quoted language, that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[2]
Over the next 60 years, the evolving-standards-of-decency test became a defining feature of Eighth Amendment jurisprudence. The majority officially adopted the test in 1976 in Estelle v. Gamble, 429 U.S. 97, 104 (1976), concluding that “deliberate indifference” to the “serious medical needs” of a prisoner violates the Eighth Amendment.
In analyzing the evolving standards of decency, the Court explained that “an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment.”[3] To assess contemporary values, the Court examined “objective indicia of society’s standards, as expressed in legislative enactments and state practice.”[4] Notably, although “[t]he applicability of the Eighth Amendment always has turned on its original meaning, as demonstrated by its historical derivation,”[5] “this historical emphasis concerns the question of when the Eighth Amendment is to be applied; as the Court’s jurisprudence under the Cruel and Unusual Punishments Clause indicates, its approach has not relied on history to the same extent when considering the scope of the Amendment.”[6] Put differently, the Court read the Eighth Amendment “less through a historical prism than according to the evolving standards of decency that mark the progress of a maturing society.”[7]
The evolving standards of decency have led the Supreme Court to declare, among other things, that the arbitrary and inconsistent imposition of capital punishment,[8] execution of the mentally retarded,[9] execution of juvenile offenders,[10] and a sentence of mandatory life without parole for those under the age of 18 at the time of their crimes,[11] violate the Eighth Amendment.
A mere decade ago, the Court, in an opinion authored by Justice Anthony Kennedy, continued to apply Trop in striking down a Florida law that defined “intellectual disability” under Atkins v. Virginia, 536 U.S. 304 (2002), as requiring an IQ below 70.[12] The Court held this “rigid” test offended the evolving standards of decency, reasoning that the “Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be” and “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.”[13]
Three years later, in Moore v. Texas, 581 U.S. 1, 12 (2017), the Court again affirmed the continued relevance of the evolving standards of decency. In an opinion authored by Justice Ruth Bader Ginsburg, the Court concluded that Texas’s application of nonclinical factors when assessing a claim of mental retardation under Atkins violated the Eighth Amendment.[14] Justice Ginsburg wrote that “to enforce the Constitution’s protection of human dignity, we look to the evolving standards of decency that mark the progress of a maturing society, recognizing that the Eighth Amendment is not fastened to the obsolete.”[15]
Moore marks the last time the evolving-standards-of-decency test has been cited favorably in a majority Supreme Court opinion. Much has changed in the intervening seven years. Justice Kennedy, one of its biggest fans, has been replaced by Justice Neil Gorsuch. Justice Ginsburg has been replaced by Justice Amy Coney Barrett. Far from touting evolving standards and contemporary values, the current iteration of the Roberts Court increasingly looks to history and tradition as its guide.
Although the Court has not expressly abrogated the test, it is arguable that it has quietly swept it into the dustbin of history, removing from that same dustbin the replacement test: namely, history and tradition. The Court’s 2024 decision in City of Grants Pass, Oregon v. Johnson, 144 S. Ct. 2202 (2024), is the chief case in point. The issue in Grants Pass was whether a local ordinance violated the Eighth Amendment because it imposed civil and criminal penalties for violating certain restrictions against camping in public spaces.[16]
Writing for the majority, Justice Gorsuch discussed the “origins and meaning” of the Cruel and Unusual Punishments Clause, noting it “was adopted to ensure that the new Nation would never resort to…certain barbaric punishments like disemboweling, quartering, public dissection, and burning alive,” that were still formally permitted under 18th century English law but had “fallen into disuse.”[17] Punishments like these were cruel “because they were calculated to superadd terror, pain, or disgrace,” and they were unusual because “they had long fallen out of use.”[18] The Court concluded that “[n]one of the city’s sanctions qualifie[d] as cruel because none is designed to superadd terror, pain, or disgrace.”[19] Further, the city’s sanctions were not unusual “because similar punishments have been and remain among ‘the usual modes’ for punishing offenses throughout the country.”[20]
Notably, in rejecting the Eighth Amendment challenge, the Court relied on history, tradition, Blackstone, and a mid-19th century case. However, notably missing from the majority opinion was any mention of Trop and the evolving standards of decency.
The test was mentioned by Justice Thomas in his concurrence, but only to emphasize his belief that it should be expressly overruled. Justice Thomas vented his frustration at the Court’s willingness at times to make “itself sole arbiter of our Nation’s moral standards.”[21] Instead, he continues to “believe that [the Court] should adhere to the Cruel and Unusual Punishments Clause’s fixed meaning in resolving any challenge brought under it.”[22]
It is easy to imagine the case going the other way a mere few years ago in an opinion written by, say, Justice Kennedy and joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor. Justice Kennedy might have waxed poetic about humane justice, morality, dignity, the heart of liberty, and an individual’s right to define one’s own preferred sleeping arrangements — whether on a bed in a house, in a sleeping bag in a tent, or on a park bench in the open air.
But such pronouncements in a majority Supreme Court opinion are now nearly unthinkable. The six conservative justices on the Supreme Court all have a commitment to the text of the Constitution, history, and tradition as the most reliable guides in interpreting the text (although they each approach history and tradition in nuanced ways).
It seems safe to say that the Supreme Court will not rely on Trop to reverse a punishment any time soon (if ever again). Although criminal defendants can — and probably should — continue to make evolving-standards-of-decency arguments before the lower courts, they would be wise also to make history-and-tradition arguments. In those rare cases when the Supreme Court takes up an Eighth Amendment challenge, litigants should dust off their history books and put away those glossy contemporary statutory codes, because it is historical practice — not the combined action of present-day state legislatures — that is likely to sway the Court.
[1] Trop, 356 U.S. at 100-01 (footnote omitted).
[2] Id. at 101 (emphasis added).
[3] Gregg v. Georgia, 428 U.S. 153, 173 (1976).
[4] Roper v. Simmons, 543 U.S. 551, 563 (2005); see also Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981) (“[W]hen the question was whether capital punishment for certain crimes violated contemporary values, the Court looked for objective indicia derived from history, the action of state legislatures, and the sentencing by juries.” (quotation marks omitted)); Miller v. Alabama, 567 U.S. 460, 482 (2012) (“[W]e ask as part of the analysis whether objective indicia of society’s standards, as expressed in legislative enactments and state practice, show a national consensus against a sentence for a particular class of offenders.” (quotation marks omitted)).
[5] Ingraham v. Wright, 430 U.S. 651, 670 n.39 (1977) (emphasis added).
[6] Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264 n.4 (1989) (emphases added).
[7] Miller, 567 U.S. at 469-70 (cleaned up).
[8] Furman v. Georgia, 408 U.S. 238 (1972) (plurality opinion); see also Gregg v. Georgia, 428 U.S. 153 (1976) (“[S]entencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant….The new sentencing procedures, by contrast, focus the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant.”).
[9] Atkins v. Virginia, 536 U.S. 304 (2002).
[10] Roper v. Simmons, 543 U.S. 551 (2005).
[11] Miller v. Alabama, 567 U.S. 460 (2012).
[12] Hall v. Florida, 572 U.S. 701, 704 (2014).
[13] Id. at 708 (quoting Weems v. United States, 217 U.S. 349, 378 (1910)).
[14] See Moore, 581 U.S. at 20-21.
[15] Id. (cleaned up).
[16] See Grants Pass, 144 S. Ct. at 2208.
[17] Id. at 2215 (cleaned up) (quoting Bucklew v. Precythe, 587 U.S. 119, 130 (2019)).
[18] Id. at 2216 (cleaned up) (quoting 587 U.S. at 130).
[19] Id. (cleaned up) (quoting 587 U.S. at 130).
[20] Id. (quoting Pervear v. Commonwealth, 72 U.S. 475, 480 (1867)).
[21] Id. at 2227 (Thomas, J., concurring) (quoting Roper, 543 U.S. at 608 (Scalia, J., dissenting)).
[22] Id.
Jeffrey Wald is an appellate attorney with Nelson Mullins Riley & Scarborough, where he works out of the Winston-Salem office. He obtained his law degree from the University of St. Thomas School of Law and now handles civil and criminal appeals across the country.
This column is submitted on behalf of the Appellate Practice Section, Courtney Brewer, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, Dimitri Peteves, Sydney Feldman-D’Angelo, and Eleanor Sills, editors.
