1983—After telling his girlfriend that “we’re going to kill Charles,” William Wayne Thompson, age 15, and three older friends brutally murder his former brother-in-law, Charles Keene. After they beat Keene, Thompson shoots him in the head, cuts his throat and chest, attaches a chain and blocks to his body, and throws the corpse into a river “so the fish could eat his body.”
Some five years later, in Thompson v. Oklahoma, a four-Justice plurality (opinion by Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun) imagines “evolving standards of decency” under the Eighth Amendment that, as Justice Scalia’s dissent aptly summarizes it, forbid the determination that any “criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime.” (As Scalia points out in a later dissent, the same folks who think that minors can’t possibly be mature enough to be held fully responsible for murders they commit insist that juveniles are mature enough to get an abortion without parental consent, but “[w]hether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.”)
1992—In Hodges v. State, the Florida supreme court reviews the death sentence of a man who, on the morning that he was scheduled for a hearing on a charge of indecent exposure, shot to death the 20-year-old female clerk who had complained of his conduct. Chief justice Rosemary Barkett, in solo dissent from the court’s affirmance of the death sentence, opines that the two statutorily defined aggravating factors on which the death sentence had been based—witness elimination and a killing that was cold, calculated, and premeditated—were “so intertwined that they should be considered as one” and votes to vacate the death sentence. Her dissent makes no effort to distinguish her court’s own precedent that permitted aggravators to be counted separately where they relate to “separate analytical concepts.”
Despite—or, rather, because of—her stunningly terrible record as a judge, President Clinton nominates Barkett to the Eleventh Circuit in 1993, and, with overwhelming support from Senate Democrats (an “outstanding jurist,” quoth Teddy Kennedy), she is confirmed and appointed in 1994.
2023—The Ninth Circuit denies rehearing en banc in Tingley v. Ferguson. The panel decision in that case ruled that therapeutic speech is non-speech conduct that is protected only by rational-basis review, and, on that basis, held that a Washington statute that prohibits “conversion therapy” for minors does not violate the First Amendment. Objecting to the denial of rehearing en banc, Judge Judge O’Scannlain (joined by three of his colleagues) complains that the panel ruling relied on a circuit precedent that the Supreme Court had “criticized … by name” in NIFLA v. Becerra (2018) and that is “no longer viable.” The Court, O’Scannlain explains, made “clear that simply labeling therapeutic speech as ‘treatment’ cannot turn it into non-speech conduct.” But the panel, by “reaching the opposite conclusion, … perpetuated a circuit split that many had thought resolved.”
In December 2023, the Supreme Court, over the dissenting votes of Justices Thomas, Alito, and Kavanaugh, will deny certiorari in the case.