The Supreme Court on Wednesday wrestled with the case of an Alabama man who has been on that state’s death row for more than two decades. The question before the justices was how the lower courts should have addressed Joseph Smith’s claim that he is intellectually disabled and therefore cannot be executed when Smith has taken five separate IQ tests over a span of almost 40 years. After roughly two hours of oral argument, the justices were divided over whether, as Smith contended, the lower courts had properly concluded, based on a wide range of evidence, that he is intellectually disabled.

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

It’s only December, but the Supreme Court has only one more month to grant all the cases it needs to fill out the rest of this term’s argument calendar. To get that done, it has had to go into overdrive mode on the relist front.

A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.

It is widely believed that the Supreme Court adjudicates Second Amendment claims using a “history and tradition” test. The label (sometimes referred to as “text, history, and tradition”) has the potential to mislead, with bad consequences for Second Amendment litigation and beyond. This month’s column explains why I believe the label is inapt, and why “text and history” is a better label for the court’s approach to the Second Amendment – and constitutional interpretation more broadly.

Updated on Dec. 10 at 10:37 a.m.

The Supreme Court on Tuesday considered a challenge to a federal law limiting the amount of money that political parties can spend in coordination with a candidate for office. During over two hours of oral argument in National Republican Senatorial Committee v. Federal Election Commission, some of the justices were sympathetic to the challengers’ position that the coordinated expenditure limits violate the First Amendment. But with Justice Neil Gorsuch remaining silent throughout the debate, and Justice Amy Coney Barrett asking only one question, it remained difficult to make definitive predictions about the outcome of the case.

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In a recent interview, Justice Amy Coney Barrett shared her view that “originalism became prominent as a theory” as a counterweight to the theory of “living constitutionalism” that “had become dominant” during the courts led by Chief Justices Earl Warren and Warren Burger. According to Barrett, whereas the living constitutionalism of the Warren-Burger eras put the court in the position of functionally amending the Constitution by updating its meaning, originalism instead aims to understand “how those who ratified the Constitution understood the words.”