Before today, the Court had based categorical proportionality rulings on the notion that the death penalty is just different, and it should be treated differently. Is that still true after Graham v. Florida? Justice Thomas says no.
Until today, the Court has based its categorical propor-tionality rulings on the notion that the Constitution gives special protection to capital defendants because the deathpenalty is a uniquely severe punishment that must be reserved for only those who are “most deserving of execu-tion.” Atkins, supra, at 319; see Roper, supra, at 568; Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978). Of course, the EighthAmendment itself makes no distinction between capitaland noncapital sentencing, but the “‘bright line’” theCourt drew between the two penalties has for many years served as the principal justification for the Court’s will-ingness to reject democratic choices regarding the deathpenalty. See Rummel v. Estelle, 445 U. S. 263, 275 (1980).
Today’s decision eviscerates that distinction. “Death is different” no longer. The Court now claims not only the power categorically to reserve the “most severe punish-ment” for those the Court thinks are “‘the most deserving of execution,’” Roper, 543 U. S., at 568 (quoting Atkins, 536 U. S., at 319), but also to declare that “less culpable”persons are categorically exempt from the “second most severe penalty.” Ante, at 21 (emphasis added). No reli-able limiting principle remains to prevent the Court from immunizing any class of offenders from the law’s third,fourth, fifth, or fiftieth most severe penalties as well.
The Court’s departure from the “death is different” distinction is especially mystifying when one considershow long it has resisted crossing that divide.