Might a couple very different Eighth Amendment issues still get on the SCOTUS docket this Term?

Over at SCOTUSblog, John Elwood has the latest of his always informative “Relist Watch” posts available here with the title “OT2023’s last grants?”.  Here is an accounting for that title:

The court will be taking a second look at nine cases.  In some ways, that is to be expected.  The court typically casts a broad net at the second January conference, because it’s usually the last conference at which cases can be granted and heard during the April argument session without expedited briefing.  So this week’s list likely includes the last of the grants to be decided this term.

And here is his accounting of two of the relisted cases dealing with very different Eighth Amendment issues (with links from the original):

The most high-profile case of the bunch is City of Grants Pass, Oregon v. Johnson, which has gained some media attention.  A divided panel of the U.S. Court of Appeals for the 9th Circuit held that it constitutes cruel and unusual punishment in violation of the 8th Amendment to the Constitution for the city of Grants Pass, Oregon, to enforce its anti-camping ordinance against homeless people when the local homeless population outstrips the capacity of local homeless shelters.

Fifteen judges dissented from the 9th Circuit’s refusal to rehear the case en banc. Grants Pass now petitions for review, arguing that the 9th Circuit’s decision is not only egregiously wrong, but entrenches a circuit split. Underscoring the importance of the issue, 24 briefs have been filed by an array of amici, from law enforcementofficials to California Governor Gavin Newsom to the homeless advocates the LA Alliance for Human Rights….

The Supreme Court held in Atkins v. Virginia that it violates the 8th Amendment’s prohibition on cruel and unusual punishments to subject intellectually disabled offenders to capital punishment.  Then the court in Hall v. Florida and Moore v. Texas adopted a definition of intellectual disability that looked to (among other factors) “significantly subaverage intellectual functioning,” and in particular, IQ testing and whether “the lower end of [the offender’s] score range falls at or below 70.”

Joseph Clifton Smith was convicted and sentenced to death for murdering Durk Van Dam so he could steal his boots, tools, and $140.  In repeated IQ tests, Smith scored 78, 75, 74, 74, and 72.  On habeas review, the district court held that Smith was intellectually disabled, noting among other things that because his 72 score had a 3-point margin of error, his IQ could be as low as 69.  The U.S. Court of Appeals for the 11th Circuit affirmed.

In Hamm v. Smith, Alabama argues that the record is inadequate to prove intellectual disability because only the lowest of Smith’s five tests satisfies the threshold, and only then at the outer limit of the standard of error.  In addition, Alabama asks the justices to overrule Hall and Moore or at least clarify that those cases permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s margin of error.