Last week, the US Supreme Court spared the life of Vernon Madison, at least temporarily, by remanding his case back to the lower court to decide whether his dementia renders him unable to be executed. Whilst this was an important confirmation of death penalty precedent, the decision is perhaps even more interesting for the dynamics of the Roberts Court going forward: Chief Justice Roberts joined the liberal justices to form a 5-3 majority in the case, seemingly confirming his role as “the new swing vote.”

From Conservative to Swing Vote

Chief Justice Roberts has generally been viewed as a solid centrist justice on the Court, usually voting with the other conservatives, especially in decisions on capital punishment. However, since 2018, the Trump Administration has nominated two staunch conservatives to the Court to replace Justices Scalia and Kennedy. Justice Kennedy was initially regarded as a conservative, but in his later years on the Court he became the “swing vote,” often joining the liberals in landmark death penalty decisions such as Atkins v. Virginia and Roper v. Simmons. When Kennedy retired in July 2018 and was replaced by Justice Kavanaugh, this left a strong 5-4 conservative majority, highlighting the politicisation of the highest court in the US. Chief Justice Roberts has been particularly irked by the suggestion that his Court is ruled by politics rather than precedent. Roberts publicly denounced President Trump when he referred to a federal district judge as an “Obama Judge,” stating that, “[w]e do not have Obama judges or Trump judges, Bush judges or Clinton judges.” President Trump then hit back at the Chief Justice on Twitter, escalating an extraordinary exchange between two branches of federal government, the likes of which have never been seen before. It is clear that the Chief Justice is concerned about the legacy his Court will leave behind and wants the Roberts Court to be remembered for more than just politics.

Why is Madison v. Alabama so Important?

Vernon Madison was sentenced to death in Alabama after killing a police officer in 1985. Since then, he has suffered a number of strokes that have left him with dementia and no recollection of the crime he committed. The key question before the Supreme Court was whether Madison could understand both the charges against him and why the State of Alabama was seeking to execute him. The Court has previously held that the Eighth Amendment’s ban on cruel and unusual punishment does not allow the execution of those who have a mental illness which impairs a person’s ability to have a “rational understanding” of why the State seeks to execute them. Following previous Supreme Court precedent in the cases of  Ford v. Wainwright and Panetti v. Quarterman, the five majority justices found that the Eighth Amendment may also prohibit the execution of a person with dementia. The majority sent the case back to the Alabama State court to decide on Vernon Madison’s competency and to consider whether he has a rational understanding of why Alabama seeks his execution.

Yet this decision did more than just temporarily spare the life of a chronically ill man. Through the Chief Justice taking on the role of the new swing vote, it has confirmed a significant shift in the Court more generally. In a bid to assuage the accusations of politicisation, and to “take back control” of his Court, it appears as though Roberts will be following precedent, even when he dissented in the previous case. For instance, in Madison, the majority opinion relied upon Panetti, a 2007 case in which the Chief Justice joined the conservatives of the Court to dissent in. Going forward, it will be very interesting to see how closely Roberts is willing to follow the precedent of the Court, and the ramifications his role as the “swing vote” will have for issues such as capital punishment, women’s rights, equal protection, and LGBT rights. The Chief Justice “taking back control” has certainly made the outcome of cases from the Supreme Court of the United States much less predictable.