From the moment the Republican Party gained a 6-3 supermajority on the Supreme Court, in late 2020, the Court has often acted as if it is going down a checklist — identifying landmark precedents that are out of favor with the GOP, and overruling those decisions in party-line votes.

Among other things, the Court eliminated the constitutional right to an abortion, abolished affirmative action at nearly all universities, and expanded religious conservatives’ ability to violate state and federal laws that they disagree with on religious grounds. Each of these decisions, and more, were clean breaks with previous Supreme Court decisions handed down by a more liberal panel of justices.

One uncertain question going into Wednesday morning’s oral argument in Hamm v. Smith, a death penalty case, is whether the Republican justices’ checklist includes past decisions limiting the government’s ability to impose cruel and unusual punishments on criminal offenders. Based on Wednesday’s oral argument, however, it now appears that this Court’s plan for the future of criminal punishment is much more modest than their ambitions on topics such as race or abortion.

It is unclear whether a majority of the Court will vote to save Joseph Clifton Smith — who is on death row in Alabama and who argues it is unconstitutional to execute him because of an intellectual disability — from being killed by the state. But several key justices appeared sufficiently skeptical of Alabama’s arguments in this case that it is, at least, possible that Smith could prevail.

Significantly, all of the justices appeared to take the Court’s decision in Atkins v. Virginia (2002), which held that people with intellectual disabilities may not be executed, as a given. And none of them — including Justice Neil Gorsuch — brought up Gorsuch’s majority opinion in Bucklew v. Precythe (2019), which seemed to suggest that the past 60 years of precedents interpreting the Eighth Amendment’s bar on cruel and unusual punishments should be tossed out.

So, while Smith could still lose, it seems likely that such a loss would be relatively narrow. Even the most pro–death penalty justices pushed for relatively incremental changes to the law governing executions, rather than calling for a revolution.

What’s at stake in Hamm v. Smith?

Smith was sentenced to death for a 1997 robbery and murder. But two lower federal courts determined that he cannot be executed, under Atkins, because he is intellectually disabled.

It’s safe to say that Smith’s claim that he has a disability is fairly marginal. It is neither so ridiculous that sensible judges would reject it out of hand, nor so compelling that no fair judge could reject it. Previous Supreme Court decisions applying Atkins establish that courts should apply the clinical definition of intellectual disability in order to determine if a particular criminal defendant has that disability. And the evidence in Hamm indicates that Smith presents a borderline case.

One of several factors that clinicians look at when diagnosing an intellectual disability is the patient’s IQ score. An IQ of 70 or below is generally associated with intellectual disability, but clinical manuals warn that IQ tests have a margin of error, and thus a patient with scores that are slightly above 70 may still be diagnosed with an intellectual disability if they have “such substantial adaptive behavior problems…that the person’s actual functioning is clinically comparable to that of individuals with a lower IQ score.”

Smith has taken five IQ tests, and he scored 75, 74, 72, 78, and 74 on them.

In Moore v. Texas (2017), moreover, the Supreme Court held that courts hearing Atkins claims must “consider other evidence of intellectual disability where an individual’s IQ score, adjusted for the test’s standard error, falls within the clinically established range for intellectual-functioning deficits.” During Wednesday’s argument, all three of the Court’s Democrats seemed to agree that this means that someone like Smith, who has some IQ scores that are only slightly above 70, must be allowed to introduce additional evidence showing that they have adaptive behavioral problems which suggest that they, in fact, have an intellectual disability.

Significantly, at least some of the Court’s Republicans also appeared open to this approach. Early in the argument, for example, Justice Amy Coney Barrett pointed out that some of the Alabama court system’s own death penalty decisions “do move on to adaptive functioning” even when a defendant’s IQ scores are above the 70 IQ threshold.

Similarly, Justice Brett Kavanaugh pushed Alabama’s lawyer, Robert Overing, on what “logic” would justify a rule forbidding a court from looking at more than just IQ scores when there is additional evidence that cuts in a defendant’s favor.

Chief Justice John Roberts, meanwhile, was largely quiet during the argument, but he did accuse Overing of making a “results oriented” argument that would permit courts to look at evidence besides IQ scores when most of a defendant’s scores are below 70, but not when they are above this threshold.

To be sure, even if Roberts, Kavanaugh, and Barrett all agree with the three Democrats that evidence of adaptive functioning is permitted even when a defendant’s IQ scores are all above 70, that doesn’t necessarily mean that Smith will prevail. But, as Seth Waxman, Smith’s lawyer, pointed out, a lower court’s factual determinations normally must be upheld by appeals courts unless the lower court made a “clear error.”

So the Supreme Court should not disturb a lower courts’ factual determination that a specific person has an intellectual disability, except in very extreme cases.

At the very least, however, these justices’ questions do suggest that they do not plan a wholesale assault on Atkins. At the most, they may rule in Hamm that Smith, a death row inmate with a genuinely marginal claim that he is intellectually disabled, may nonetheless be executed.

“The evolving standard of decency”

Historically, the Court’s right flank has criticized Atkins and attempted to undermine it. In Hall v. Florida (2014), for example, one of the Court’s decisions establishing that capital defendants may introduce other evidence that they are intellectually disabled even when their IQ scores are above 70, four justices dissented. Justice Samuel Alito’s dissent, moreover, would have given states a great deal of leeway to determine how criminal defendants are evaluated for an intellectual disability.

Yet, while Alito still pushed for a narrow reading of Atkins, he didn’t seem to have much support from his colleagues. Although Alito spent considerable time suggesting that it would be absurd to let additional evidence into a hypothetical case where the defendant had five IQ scores of 100 and one of 71, for example, none of the other justices seemed to latch onto this unlikely hypothetical.

Additionally, none of the justices, including Gorsuch, brought up an alternative framework for Eighth Amendment cases that Gorsuch floated in Bucklew.

Beginning in the middle of the 20th century, the Court declared that the constitutional ban on cruel and unusual punishment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” So, as a particular method of punishment grows more “unusual,” it also stands on increasingly infirm constitutional ground.

In Bucklew, however, Gorsuch ignored this “evolving standards” framework and instead suggested that a punishment is unconstitutional only if it would have been considered cruel and unusual when the Eighth Amendment was ratified in the 1790s. This approach would potentially have breathtaking consequences for all criminal defendants. Among other things, it’s not at all clear that the founding generation thought that it was cruel and unusual to give someone an excessive punishment for a minor crime.

But no one brought up this originalist approach during the Hamm argument, and Alito, of all people, seemed to reject it entirely. At one point, he stated fairly explicitly that his Court’s job in Hamm is to determine “the evolving standard of decency.”

The big takeaway from Wednesday’s argument, in other words, is that Smith’s fate remains uncertain. But it also looks like the Court’s decision in this case will be fairly narrow.

If a majority of the justices do crave a Bucklew-style revolution in the Court’s approach to the Eighth Amendment, that revolution will have to wait until a future case. And it is far from clear that there is a majority for such a revolution, even though a total of five justices joined Gorsuch’s opinion in Bucklew.