The dissent concluded with the following in relevant part: The Government appropriately confesses that “this case satisfies both criteria” and that, as a result, “this Court should GVR.” Brief in Opposition 12, 14. Members of this Court have expressed additional views on the propriety of GVR orders. Under any, a GVR was appropriate here. The parties have identified a new development with obvious legal bearing. The AAIDD definition was one of only two sources the Eighth Circuit consulted, and the court rejected Coonce’s argument solely because, at the time, it was an unrealized “prediction that medical experts will agree with Coonce’s view in the future.” 932 F. 3d, at 634. As the Government concedes, the realization of Coonce’s “prediction” surely presents a reasonable probability of a different outcome. Thus, the Government does not defend the judgment below.
Finally, in the Government’s words, “a GVR order is warranted given the stakes in this capital context.” Brief in Opposition 15. Coonce asserts an interest of constitutional dimension. He requests a meaningful opportunity to be heard on his claim that he has an intellectual disability, such that his execution would “violate his inherent dignity as a human being,” threaten “the integrity of the trial process,” and contravene the Eighth Amendment’s prohibition on cruel and unusual punishment. Hall, 572 U. S., at 708, 709. The Court has issued GVR orders for far less.
This Court has long emphasized the “need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion). A GVR was the least the Court could have done to protect this life-or-death interest. I can only hope that the lower courts on collateral review will give Coonce the consideration that the Constitution demands. But this Court, too, has an obligation to protect our Constitution’s mandates. It falls short of fulfilling that obligation today. The Court should have allowed the Eighth Circuit to reconsider Coonce’s compelling claim of intellectual disability, as both he and the Government requested. I respectfully dissent.
Critics of the dissent would refer to it as judicial activism. The reference to a likely collateral attack means that the actual execution of Coonce will likely not occur for additional years, if at all. At 41, he is unlikely to pass from old age before all of his legal remedies are exhausted.