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Supreme Court Conservatives Accuse Death Penalty Opponents of “Guerrilla War”

A case about a lethal injection drug turns into a debate about capital punishment itself

Chip Somodevilla / Getty Images

The specter of an Oklahoma man who exclaimed his “body was on fire” as he was put to death hung over a contentious Supreme Court hearing on Wednesday, as the justices grappled over the constitutionality of the state’s lethal injection protocol. But you wouldn’t know any of this by merely sitting in the courtroom. There was no acknowledgment that in January, the court had refused—over vigorous opposition by four justices—to halt Charles Warner’s execution, only to change its mind a week later by agreeing to hear his and other death-row prisoners’ appeal. Of course, that was too late to save Warner.

The justices’ indecision about the merits of Warner’s initial appeal is shrouded in mystery, and it raises serious questions about the Supreme Court’s standards in hearing capital cases. But the fact remains that Warner's death by lethal injection allowed his peers to mount a full-on Eighth Amendment challenge to Oklahoma’s use of midazolam, a sedative the state claims suffices to avoid pain at the moment the state administers the remainder of the lethal cocktail.

But does it? If Warner’s case and other botched executions in his own state, Ohio, and Arizona are any indication, it’s not clear that midazolam prevents an execution amounting to cruel and unusual punishment. In the face of that uncertainty, the justices put on their scientific hats anyway and pummeled lawyers for the men on death row and Oklahoma with questions about midazolam’s so-called efficacy. It was an unnerving hour of questioning—the notion that the Supreme Court, in its wisdom, seems poised to answer definitively questions about a drug’s “ceiling effects,” pharmacological properties, and other scientific imponderables reflects the nature of a case that was surreal from the very start.

At best, the court should stay away from all of this and send the case back to the lower court for serious fact-finding and more expert testimony. But it probably won’t. Because at the bottom, Glossip v. Gross is a case about the death penalty. And lest anyone think otherwise, that’s grounds enough for conservatives on the court, particularly justices Antonin Scalia and Samuel Alito, to want to send a clear message from the bench where the Constitution stands on the matter.

“Let’s be honest about what’s going on here,” said Alito, before delving into a mini-lecture on the death penalty’s constitutionality, the policy debates around it, and how voters are free to abolish it or even resort to the courts to fight it. What Alito seemingly won’t tolerate is “the guerrilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain.”

And just like that, Glossip was not a case about cruel and unusual punishment on a person, but on a state. Whether it’s Obamacare, same-sex marriage, voting rights, or other issues of social import, the Roberts Court is keen on boiling it down to hardship on the states.

Scalia played off this riff. He lamented the struggle states have faced in finding sound alternatives where supplies have run dry and chastised “the abolitionist movement” against the death penalty for causing the shortage. “And now you want to come before the court and say, well, this third drug is not 100 percent sure,” Scalia said to the lawyer representing the death-row petitioners. “The reason it isn't 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as relevant to the decision that you're putting before us?”

It didn’t help that Justice Anthony Kennedy, whose regard for the dignity of all persons has anchored prior death-penalty rulings, really wanted to hear the answer to Scalia’s question. The lawyer answered correctly—that it’s irrelevant under the Eighth Amendment. More importantly, this exchange gave way to a fascinating give-and-take about whether the Constitution tolerates the panoply of methods states have tinkered with since the dawn of the republic, including firing squads, hanging, death by gas chamber, the electric chair.

Glossip doesn’t call into question any of these methods, only whether the alleged inefficacy of midazolam raises a “substantial” or an “objectively intolerable risk of harm.” But the justices brought them up and ran with hypotheticals that would lead observers to believe the death penalty itself were on trial. Would the Constitution permit a state to burn someone at the stake if it were unknown that a pre-execution sedative promising no pain actually works?

That the Supreme Court would even entertain such questions in 2015 calls into doubt whether the country’s supposed “evolving standards of decency” have evolved much. And that perhaps the death penalty is best left to die a slow and painful death, rather than rely on courts and the Constitution to lead the way.

This piece has been updated.