Alabama, John Roberts confirms that he is the new swing judge.

Chief Justice John Roberts probably saved Vernon Madison's life. He may also have saved the eighth amendment. On Wednesday morning, Roberts joined the Liberal judges of the Supreme Court in Madison c. Alabama, an important decision on the death penalty, saying that states can not execute prisoners unable to understand their sentences because of disorders such as dementia. The decision strengthens constitutional protections against executions for prisoners with mental disabilities, while reinforcing Roberts' role as the court's new swing justice.

Madison was sentenced to death for killing an Alabama police officer in 1985. Today, he is almost 70 years old and has spent 33 years in solitary confinement. Following a series of strokes, he suffers from severe cognitive impairment due to vascular dementia. He has trouble walking, talking or processing basic information. Because of these evils, Madison can no longer remember her 1985 crime.

Alabama still wants to kill him. Madison's lawyer, famed human rights defender Bryan Stevenson, replied that the eighth amendment prohibited his execution. In 2007 Panetti v. Quarterman, the Supreme Court ruled that the government can only execute an individual whose "mental state is so altered by a mental illness" that it does not have a "rational understanding" of the "reason to be from [his] l & # 39; execution. "Stevenson claimed that under Panetti, A lethal injection would be unconstitutionally "cruel and unusual".

Alabama argued the contrary, noting that Panetti it is specifically addressed to inmates who suffer from "gross delusions". Madison, according to prosecutors, has dementia, not illusions, and so is unprotected by Panetti. The central question facing the Supreme Court in this case, therefore, is whether the Eighth Amendment prohibits the execution of individuals whose dementia (and not illusions) impede a "rational understanding" of the motive of their execution.

Elena Kagan, in her majority opinion, easily concluded that yes. Based on PanettiKagan first explained that the fact that an inmate does not remember his criminal act does not by himself make it immune to the execution. She later wrote, however, that "this loss of memory can still be taken into account in the analysis of" rational understanding ". Panetti requests. "If memory loss" combines and interacts with other mental deficiencies to deprive a person of his ability to understand "his death sentence," Panetti the standard will be satisfied.

Kagan then concluded that it did not matter that these "mental deficits" resulted from delusions, dementia or any other disorder. Courts must "look beyond any diagnosis to look for a downstream consequence," that a disorder may "alter the prisoner's concept of reality" so that he can not "understand" the meaning of his sentence. Dementia and illusion "come in many shapes and sizes, and all do not interfere with the understanding required by the eighth amendment." Courts must assess "disorientation and cognitive decline" to determine whether enforcement is constitutional; they can not simply turn to the official diagnosis of the prisoner.

Does this mean that Alabama can not legally kill Madison? This remains unclear. Kagan pointed out that the Alabama court that had approved Madison's execution had stated that "the evidence does not support the conclusion that Mr. Madison is delusional". She ordered the court to reassess the case in light of Wednesday's decision a misguided vision of the relevance of delusional ideas or memory "and to consider completing the report in the light of the new decision. The implication here is obvious: Madison is probably too sick to be executed constitutionally, and if the Alabama court does not agree, it is better to give a very good reason.

Judges Samuel Alito, Clarence Thomas and Neil Gorsuch were dissenting. (Judge Brett Kavanaugh did not participate because he was not at the hearing during the oral proceedings.) Alito accused the majority[ing] a mockery "of the rules of the court, because Stevenson did not initially present the case of Madison as a simple elucidation of Panetti (Kagan called his reproaches "high dudgeon".) Alito's dissent is more related to the long-standing disgust of justice for lawyers who oppose the death penalty than to Thu.

The big question here is why Roberts crossed ideological lines to support Madison. There are some possibilities. First, if Roberts voted with the Conservative bloc, the court would separate 4 to 4, leaving a lower court order for Madison's execution. The Chief Justice was horrified by the impasses and, in the course of argument, it appeared that Roberts was trying to avoid one, prompting Stevenson to agree that the case could be decided for limited reasons by following: Panetti. He then urged the Alabama Deputy Attorney General to concede that Madison's dementia could protect him from any execution under the law. Panetti, even if he is not delusional. These concessions, extracted from Roberts' extensive examination at the pleadings, formed the basis of Kagan's opinion.

But there is a problem here: dissident Roberts of Panetti, disagreeing with his interpretation of the eighth amendment. Roberts just kissed Panetti as a precedent, even though he still thinks it's wrong? Perhaps. But I have another theory. In 2015, the Yale Law Journal published an innovative article by Michael Clemente claiming that the Eighth Amendment, as originally understood, offered strong protections against the execution of the mentally handicapped. Citing a multitude of historical documents, Clemente argued that the drafters, in crafting the eighth amendment, defined "madness" much more broadly than the Supreme Court defined it in the context of the death penalty. The court, said Clemente, should restore this "more generous standard" for "the degree of mental deficiency" needed to prohibit the execution.

Clemente is now a Roberts clerk. We will never know if he influenced his boss Madison. However, Roberts' vote on Wednesday reflects a significant change in his interpretation of the eighth amendment. And the Chief Justice's lights could save the life of an elderly and disabled inmate currently on death row in Alabama's death row.