Two of the Supreme Court's Republican-appointed justices crossed ideological lines this week, joining the Court's three liberals to dismiss an Alabama bid to execute a death row inmate found to be intellectually disabled. The 5-4 split in Hamm v. Smith left four conservative justices in pointed dissent, arguing the Court ducked a question lower courts desperately need answered.
The case centered on Joseph Clifton Smith, an Alabama inmate whose IQ scores have ranged from 72 to 78 across multiple tests. Lower courts found Smith intellectually disabled and therefore ineligible for execution under the standard set by the Supreme Court's 2002 decision in Atkins v. Virginia, which bars the death penalty for intellectually disabled defendants.
Alabama asked the Supreme Court to intervene, arguing the federal appeals court got the analysis wrong. Instead, Justices Brett Kavanaugh and Amy Coney Barrett joined Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson to dismiss the state's appeal as "improvidently granted," a procedural move that kills the case without ruling on its merits. The result: Smith stays off the execution table, and the lower-court rulings protecting him remain intact.
Dismissing a case as improvidently granted, known in legal shorthand as a "DIG," means the Court decided after accepting the case that it should not have taken it up at all. No precedent is set. No new rule is announced. The practical effect here is simple: Smith lives, and Alabama loses its shot at reversing the lower courts in this case.
But the legal question Alabama raised is not going away. When a defendant has taken multiple IQ tests and the scores vary, how should courts weigh those results? That issue sits at the core of death penalty eligibility for borderline cases across the country, and the Court's refusal to address it drew sharp criticism from the dissenters.
AP News reported that all four dissenting justices were conservatives who argued the appeals court had improperly analyzed the case and should have been ordered to reconsider it. The lineup underscored a rare fracture on the Court's right flank, with Kavanaugh and Barrett peeling away from their usual allies.
Justice Sotomayor wrote separately to explain why the Court was right to walk away from the case. She framed the dispute as a poor vehicle for setting new rules on IQ score analysis in capital cases.
"The Court was right not to use this case to address how courts must analyze multiple IQ scores under its death-penalty standard for intellectually disabled persons."
That language suggests Sotomayor saw the facts of Smith's case as too messy or too narrow to produce a clean ruling that would guide lower courts. The analysis published by Slate explored why Kavanaugh and Barrett may have agreed with that reasoning, even though both justices have generally supported state authority in capital cases.
The decision also fits a broader pattern of internal Court tensions that have surfaced publicly in recent terms. Sotomayor herself has been at the center of some of those moments, including an episode in which she issued a rare public apology after a personal attack on Kavanaugh's background.
Justice Samuel Alito authored the dissent, joined in full by Justice Clarence Thomas and in part by Chief Justice John Roberts and Justice Neil Gorsuch. Alito did not mince words about what he saw as a missed opportunity.
"I respectfully dissent from the Court's decision to leave this important question unanswered."
The Washington Examiner noted that Alito's dissent argued the Court should have clarified how IQ scores are evaluated in death penalty cases, warning that lower courts are applying inconsistent methods. Without guidance from the high court, states prosecuting capital cases face a patchwork of standards that vary by circuit.
Thomas, who has repeatedly staked out the Court's most aggressive positions on criminal procedure and state power, joined Alito's dissent in full. Thomas has not been shy about breaking from the majority in high-profile cases this term, as seen when he dissented in a major tariff decision that divided the conservative bloc along different lines.
At the heart of this dispute is a deceptively simple problem. Smith took multiple IQ tests over the years, and his scores landed in a narrow band between 72 and 78. Under Atkins, a person who is intellectually disabled cannot be executed. But the Court has never spelled out exactly how judges should handle a defendant whose scores cluster near the cutoff and vary from test to test.
Should courts average the scores? Give more weight to the most recent test? Discount scores taken under unusual conditions? Lower courts have answered these questions differently, and Alabama argued this case was the right moment to impose a uniform standard.
The majority plainly disagreed, at least about this case being the right vehicle. But the underlying tension remains unresolved. Every state with the death penalty will eventually face a borderline IQ case, and the lack of clear guidance from the Supreme Court means outcomes may depend more on geography than on law.
That kind of procedural uncertainty has fueled broader political fights over the Court's role. House Democrats have pushed legislation targeting the Court's shadow docket practices, and critics on both sides have questioned whether the justices are doing enough to resolve the legal conflicts that land on their doorstep.
Neither Kavanaugh nor Barrett wrote separately to explain their votes, which means observers are left to read the tea leaves. The most straightforward explanation is procedural, not ideological. A DIG does not require a justice to agree with the lower court's reasoning. It only requires a conclusion that the case, as presented, is not the right one to decide the broader legal question.
Newsmax reported that the dismissal left intact the lower-court rulings finding Smith intellectually disabled. That framing matters: Kavanaugh and Barrett did not rule that Smith is intellectually disabled. They simply declined to disturb the finding on this record.
Still, the optics are striking. Both justices were appointed by President Trump and confirmed through bruising Senate battles. Conservative legal observers have watched their votes closely for any sign of drift, and a 5-4 lineup that puts them shoulder-to-shoulder with Sotomayor, Kagan, and Jackson will raise eyebrows regardless of the procedural rationale.
The behind-the-scenes dynamics of the current Court remain a subject of intense speculation. Reports of internal friction have surfaced repeatedly, including a book claiming Justice Kagan screamed at Sotomayor after the Dobbs leak loudly enough to shake the walls. Against that backdrop, any cross-ideological alliance draws extra scrutiny.
For Joseph Clifton Smith, the immediate consequence is survival. The lower-court rulings shielding him from execution stand, and Alabama has no remaining avenue to challenge them in this proceeding.
For the broader legal landscape, the IQ-score question remains open. Another case with a cleaner factual record could reach the Court in a future term, and the four dissenters made clear they are ready to take it up. Whether Kavanaugh and Barrett would join them next time is anyone's guess.
Investigators and prosecutors in capital cases across the country will need to determine how to handle borderline intellectual disability claims without a definitive standard from the nation's highest court. Until the justices agree on the right vehicle, the rules will keep shifting from one courtroom to the next.
When the Court refuses to draw the line, someone else draws it for them. In death penalty law, that kind of ambiguity has life-or-death consequences, and the dissenters made clear they think the Court owes the country a straight answer.
