In a bitterly divided 5-4 decision, the Supreme Court today affirmed the constitutionality of lethal injection, even when the drugs used are untested, unproven, and possibly ineffective.
Yet while the Court’s conservative majority prevailed, the ruling has—for the first time in 20 years—prompted two sitting Supreme Court judges to doubt whether the death penalty, itself, may be unconstitutional.
Writing for the court in Glossip v. Gross (PDF), Justice Alito upheld Oklahoma’s three-drug cocktail despite a risk that the sedative used, midazolam, would not sufficiently prevent pain. Expert testimony in the case revealed that the drug is unreliable at making an inmate unconscious, which could lead to botched executions such as that of Clayton Lockett in April 2014: Appearing to speak and make gestures of distress, Lockett writhed and convulsed for nearly 45 minutes after lethal injection drugs were administered. Although his execution was stopped, he died on the way to the hospital.
But according to the Court, a state is not required to choose the most painless method of execution, especially when others are hard to find.
The political context of the case may have helped dictate this result. Justice Alito had expressed concern during the oral arguments that anti-death penalty activists had succeeded in creating a lethal injection drug shortage in the United States. Corrections facilities are increasingly constrained in their efforts to import drugs, purchase them from pharmaceutical companies, or enlist pharmacists and doctors. Executions have fallen, and some states have even revived the firing squad now that the drugs are so difficult to source.
In this heated context, Justice Alito held, remarkably, that the constitutionality of a specific drug depends on its availability; since the state has to find some way of carrying out executions, Justice Alito reasoned, a faulty one is better than none at all.
The Glossip decision exposed unusual acrimony among the justices, to which the contentious oral arguments were only a prelude. In five separate decisions—the same number as last week’s same-sex marriage case, and running even longer in page count—the majority, the dissenters, and even two concurring opinions attempted to have the final word, often an insulting one.
In his majority opinion, Alito bemoaned the dissenters’ “outlandish rhetoric” that the Court was allowing torture or burning at the stake as long as a sedative was administered first. In the main dissent joined by the Court’s other three liberals, Justice Sotomayor wrote that requiring prisoners to prove that a more painless method of execution existed was “patently absurd.” By contrast, Justice Thomas filed an opinion that called into question earlier rulings that found that executions of juveniles and persons with mental disabilities were unconstitutional. To Thomas, the Eighth Amendment effectively does not constrain the state at all.
However, it was Scalia’s concurrence that (as usual) produced the most colorful language, in the style of his Obergefell same-sex marriage dissent last week. To Justice Breyer’s dissent calling for the abolition of the death penalty, Scalia responded that Breyer’s argument was “full of internal contradictions and (it must be said) gobbledy-gook.” He warned against using Breyer’s “creative arithmetic” to prepare one’s next tax return. Joined by Justice Thomas, Scalia concluded that the Framers of the Constitution disagreed on the death penalty and therefore left it to the people to decide. In his final rhetorical flourish, “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”
Glossip revealed a deep divide among the justices—and a narrow conservative majority. But it also showed something else: solidification of the Court’s liberal wing against the death penalty. In 1994, Justice Harry Blackmun explicitly called the death penalty unconstitutional when he announced in a lone dissent that he would “no longer…tinker with the machinery of death.” He had lost faith that the Court could ever pronounce a workable death penalty system. Blackmun voted to uphold the death penalty in the challenges of the 1970s, but changed his mind after challenges based on racial discrimination, poor assistance of counsel, and inmates’ mental disabilities in the following decade.
In subsequent years, with the constitutionality of the death penalty settled, the Court’s liberal wing fought for narrow victories, not broad ones. Support from swing justices helped end the death penalty for juveniles and persons with mental disabilities, as well as the death penalty for non-murder crimes. But the liberal justices refrained from calling for wholesale abolition.
That changed today. More than 20 years after Blackmun’s dissent, Justice Breyer took up the cause of abolition, finding that the death penalty, “in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’” His opinion expansively cited to scientific literature refuting the death penalty’s deterrence rationale, calling the death penalty “cruel” for its unreliability, arbitrariness, and delay, focusing on recent exonerations. Interestingly, he also wrote that the death penalty was “unusual,” applied by a small number of counties in a tiny number of states and firmly rejected by a growing majority of the world’s nations. After 40 years of struggling to heal the constitutional infirmities of the death penalty, he determined that the effort had failed. Justice Ginsburg joined his opinion questioning the constitutional foundations of capital punishment.
Shortly after Justice Blackmun called for abolition of the death penalty, he retired at the end of the term. Justice Breyer replaced him. As his successor, it is most appropriate that Breyer accepted Blackmun’s cause. Glossip was decided in favor of the state. But perhaps its most lasting impact is that the position that the death penalty constitutes cruel and unusual punishment is no longer as lonely as it was in Blackmun’s time.