Legal Docket: Judgment calls

Editor's note: The following text is a transcript of a podcast story. To listen to the story, click on the arrow beneath the headline above.

NICK EICHER, HOST: It’s Monday the 29th of December.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. Time now for Legal Docket.

We’ll get to this week’s case in a moment.

But first, in these last few remaining days of 2025, we are remembering the lives of people notable in their fields who died this year.

In the field of the law and the courts, a former Supreme Court justice died—David Souter, May 8th … at age 85.

The soft-spoken Souter had arrived on the national stage in 1990.

SOUTER: I was in a state of virtual shock.

EICHER: Souter had a thin public record and only months on the federal bench, but the White House was playing it safe, thinking it had learned the lessons of the failed nomination of the well-known Robert Bork.

Former White House lawyer Doug Kmiec, who worked on the Souter nomination, later reflected to CNN—

KMIEC: At the time, David Souter was called the stealth candidate …

All the while, the White House was assuring Republicans that Souter was one of them.

Pressed on abortion, though, in his Senate confirmation hearing, Souter dodged again and again.

SOUTER: I have not got any agenda on what should be done with Roe v. Wade if that case were brought before me.

Senators tried different methods to coax Souter out.

Democrat Howard Metzenbaum brought up women facing unwanted pregnancies

METZENBAUM: And I would just like to get your … own thoughts of that woman's position under those circumstances.

ROUGH: Souter described a moment from his law-school days.

SOUTER: … I was on the board of freshman advisers at Harvard College … one afternoon, one of the freshmen assigned to me came to me in pretty rough emotional shape…

That afternoon, Souter said he spent hours counseling a distraught student who was considering a self-induced abortion. He cited this personal experience to demonstrate he understood the emotional gravity of the abortion debate.

SOUTER: And your question has brought that back to me, and I think the only thing I can add to that is I know what you were trying to tell me, because I remember that afternoon.

METZENBAUM: Well, I appreciate your response. I think it indicates that you have empathy for the problem.

EICHER: Souter had smooth sailing to confirmation 90 to 9, zero opposition from Republicans. But within two years, Souter would vote to reaffirm the right to abortion in Casey vs. Planned Parenthood. By the year 2000, Souter would vote to strike down a partial-birth abortion law.

Conservatives would point to that nomination and demand of future Republican presidents: No more Souters.

But years later, one of Souter’s former law clerks, legal scholar Noah Feldman, would argue that no one should’ve been surprised. The audio from PBS.

FELDMAN: The biggest mistake that people made about David Souter was thinking that somehow he was a conservative when he went on to the court and then magically became a liberal. In fact, Justice Souter was hiding in plain sight the whole time. He believed that the Constitution was not a dead document that should be interpreted according to what people thought 200 and some years ago, but rather was a document that needed to be interpreted in the light of our changing needs and circumstances.

ROUGH: Another former Souter clerk, Jeannie Suk Gersen, later reflected on her assignments to monitor emergency stay petitions from death-row inmates — often arriving on the very day of a scheduled execution.

In the Harvard Law Review, she wrote that the work took a physical toll— “… precipitating nausea, an inability to eat, and insomnia.”

And then, something worse—“… the capital cases became so routine… that a numbness that looked like indifference could set in.”

EICHER: That concern came to define David Souter’s later years on the bench, and as Gersen remembers it, Souter insisted in the “most empathetic and graceful manner imaginable” that she just needed to “pull it together”… her words: “a jolt essential to the ethical life of a young legal professional.”

Souter’s skepticism of the court’s role in administering the death penalty would increase—especially as cases grew more technical, more medical, and more dependent on judicial line-drawing.

ROUGH: Questions about who may be executed.

About how courts measure intellectual disability.

About whether legal standards can keep pace with human reality.

Those are not abstract questions. They continue to come before the court.

And they bring us to the case the justices are considering now.

Hamm versus Smith—a death-penalty case that turns on how we measure the human mind, and where the Constitution draws its limits.

AUDIO: This is one of my favorite questions, and there is a very high chance that you will get it on the assessment test. How many triangles do you see? … You have four different choices: Choice A, nine triangles. Choice B, twelve.

EICHER: That may sound like a classroom riddle, but for Joseph Clifton Smith, the stakes are life and death. Twenty-eight years ago, Smith beat a man to death in Alabama. Today, he’s 55 years old and on death row. Smith has taken multiple IQ tests over his lifetime … and performed poorly; he argues his low scores make him ineligible for execution.

His challenge rests under the 8th Amendment’s clause banning “cruel and unusual punishment.”

ROUGH: While we often think of that clause as a ban on how we punish—outlawing torture or the rack—the Supreme Court has developed a second standard for who we punish. In 2005, the court ruled that juveniles cannot be executed. A few years prior, it said the same of the intellectually disabled.

Smith argues he belongs in that category.

John Fabian is a forensic psychologist and neuropsychologist. He spends his days evaluating the minds of men like Smith to determine whether they meet that constitutional threshold.

FABIAN: And that’s how I met Joseph, he goes by Jody Smith on Alabama death row a number of years ago.

10 years ago. Fabian served as an expert witness during an evidentiary hearing in the midst of legal challenges.

FABIAN: He presented as very low functioning verbally. And almost like he fit in the Of Mice and Men story where he just was low functioning and seemed almost like a big child. 

ROUGH: Did he understand that he killed someone?

FABIAN: Yes.

ROUGH: And does he understand that he’s on death row?

FABIAN: Yes.

And that it’s wrong to kill someone. Also yes.

But his guilt isn’t the question. Sentencing is.

EICHER: Regardless of legal guilt, if he’s intellectually disabled, he cannot receive a death sentence.

To try to find out, Fabian administered the Stanford-Binet-5 IQ test to Smith.

FABIAN: And the average Joe’s going to be—we look at it as a standard score of 100 being 50th percentile.

Smith’s score was 78.

Generally, courts look for a score of 70 or below to find someone intellectually disabled. But Smith has taken multiple tests over his life, with scores ranging from 72 to 78. But because numbers tell only part of the story … Fabian also tested Smith’s “adaptive functioning” meaning, his actual ability to navigate the demands of everyday life.

FABIAN: Being able to utilize a bank account, fill out job applications, cook food, tend to hygiene, drive.

Fabian says Smith couldn’t do those things very well … and concluded that even though it was a close call … Smith fell into the category of intellectually disabled. Lower federal courts agreed and vacated Smith’s death sentence, but Alabama appealed to the Supreme Court … fighting to reinstate the death penalty.

ROUGH: The core dispute: how should a court handle a defendant with several different IQ scores? Robert Overing argued for Alabama … insisting Smith’s scores prove he is n0t disabled.

OVERING: Smith is not. He didn’t come close to proving an IQ of 70 or below.

Justice Brett Kavanaugh searched for a logical way to wade through so many tests, suggesting courts could use a median score or a composite of all of them. Alabama was open to the math, but Justice Kenaji Brown Jackson pushed back. She argued that focusing solely on IQ ignores the real-world struggle to function.

JACKSON: We also have allowed for evidence related to adaptive functioning to be taken into account when looking at intellectual functioning. So I think what you’ve done is shift this to be all about the IQ test in a way that’s not supported by our case law.

OVERING: IQ has always been the primary criterion by which intellectual—

JACKSON: Primary, but not sole

EICHER: Justice Elena Kagan seemed to agree that state courts have the discretion to at least consider secondary evidence. But Alabama warned that once you let in squishy evidence, like whether a defendant can buy car insurance or manage a bank account, the hard data gets ignored.

OVERING: They simply move on from IQ. And so once you open the door to this kind of balancing test …  really malleable, really amorphous. … And so that evidence is not discipling the inquiry. It’s not adding more rigor to figuring out what the intelligence is.

Justice Samuel Alito echoed that concern, arguing that without a concrete standard. every case is a guessing game—

ALITO: Will there not be greater consistency and predictability and is that not one of the lodestars of the court’s death penalty jurisprudence as opposed to a situation where everything is up for grabs in every case.

ROUGH: Representing Smith , attorney Seth Waxman countered that Alabama’s own state law requires looking beyond raw IQ scores.

WAXMAN: I am holding all 12 decided, reported cases on this issue in Alabama, and there is not a single case, in which the court said we’re only going to look at the test scores, we’re not going to consider other evidence.

Ultimately, the Justices are looking for a stable standard. They have to balance two risks: (1) the risk that a defendant might “fake” a low score to stay alive, and (2) the risk that a state might repeatedly test a defendant until he finally gets the “passing” grade they need to proceed with an execution.

And that’s this week’s Legal Docket.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.