Congratulations to the United States Supreme Court for today unanimously upholding, per curiam, the part of Booth v. Maryland, 482 U. S. 496 (1987), that bans any victim impact statements at capital case jury sentencing proceedings other than victim impact evidence “‘relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim’s family.'” Bosse v. Oklahoma, __ U.S. __ (Oct. 11, 2016).

Over Bosse’s objection, family members of his three murder victims (Katrina Griffin and her two children) recommended the death penalty to the jury that had convicted Bosse. The Oklahoma appellate court concluded that Payne v. Tennessee, 501 U. S. 808 (1991), had “‘implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions of the sentence.’” If a lower court wishes to get the goat of the United States Supreme Court, that will be accomplished by making such a conclusion. The Supreme Court retorted:

“‘[I]t is this Court’s prerogative alone to overrule one of its precedents.’ United States v. Hatter, 532 U. S. 557, 567 (2001) (quoting State Oil Co. v. Khan, 522 U. S. 3, 20 (1997); internal quotation marks omitted); see Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989). The Oklahoma Court of Criminal Appeals has recognized that Payne “specifically acknowledged its holding did not affect” Booth’s prohibition on opinions about the crime, the defendant, and the appropriate punishment. Ledbetter, 933 P. 2d at 890–891. That should have ended its inquiry into whether the Eighth Amendment bars such testimony; the court was wrong to go further and conclude that Payne implicitly overruled Booth in its entirety. ‘Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.’ Hohn v. United States, 524 U. S. 236, 252–253 (1998).”

Today’s Bosse decision is more monumental than might first meet the eye. The United States Supreme Court has at least three justices that are very friendly to preserving the death penalty (Chief Justice Roberts, Justice Thomas, and Justice Alito), and no longer has even one justice entirely rejecting the death penalty (those having been the late Justices Marshall and Brennan). In Bosse, the Supreme Court dug in its heels to reassert the supremacy of its opinions, over any of the more conservative justice’s affinity for capital punishment. Bosse remands the case for the lower court to consider, or not, the prosecution’s contention that the error in Bosse “did not affect the jury’s sentencing determination, and the defendant’s rights were in any event protected by the mandatory sentencing review in capital cases required under Oklahoma law.”

Of course, Payne‘s reversal of Booth’s complete ban on victim impact statements from capital case murder victims’ families looks more like the result of a radical change in Supreme Court personnel than any other reason. Booth was a 1987 5-4 decision, with Justices Powell, Brennan, Marshall, Blackmun and Stevens in the majority, with dissenting votes from Chief Justice Rehnquist and Justices White, O’Connor and Scalia.

The 1991 six-justice Payne majority was made up of Chief Justice Rehnquist, and Justices White, O’Connor, Scalia, Kennedy (who replaced Justice Powell, who penned Booth), and Souter (who replaced Justice Brennan, who was in Booth‘s majority).  The dissenting justices in Payne were Justices Marshall, Blackmun, and Stevens.

Your vote counts about the makeup of the Supreme Court and the lower federal courts, and the decades-long impact of Supreme Court decisions. Donald Trump reconfirmed in the second presidential debate that he wishes to appoint Supreme Court justices in the mold of the late Justice Antonin Scalia, whom I never wanted on the Supreme Court. Justice Scalia experienced little discomfort over the death penalty. As but one example, his blistering dissent in Booth v. Maryland includes: “Recent years have seen an outpouring of popular concern for what has come to be known as ‘victims’ rights’ — a phrase that describes what its proponents feel is the failure of courts of justice to take into account in their sentencing decisions not only the factors mitigating the defendant’s moral guilt, but also the amount of harm he has caused to innocent members of society.”

If Donald Trump became president (more of a pipe dream than ever, as Trump dives further in the polls), he would likely have the opportunity to appoint one to four Supreme Court justices, with Justice Scalia’s vacant seat still left to be replaced, and with Justices Kennedy, Ginsburg and Breyer respectively at the current ages of 80, 83 and 78.

Therefore, remember the president’s judicial nominating authority when voting November 8, 2016.