Supreme Court justices like to project an image of collegiality and sobriety to the American public. But that comity often breaks down when the court debates the death penalty. The latest example is Monday’s opinions in Bucklew v. Precythe, which read more like a barroom brawl than a judicial exchange of views.
Russell Bucklew, a Missouri death-row prisoner with a rare medical condition, filed a lawsuit in 2015 to make the state execute him by nitrogen hypoxia. Missouri’s choice of lethal injection, he warned, could force him to die drowning in his own blood. The five conservative justices on the court ruled that he hadn’t met their high threshold for challenging execution methods. The Eighth Amendment, Justice Neil Gorsuch wrote for the court, “does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.”
In their dissent, the four liberal justices accused their colleagues of placing judicial convenience over Bucklew’s constitutional rights. “There are higher values than ensuring that executions run on time,” Justice Sonia Sotomayor wrote. “If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out.” Justice Stephen Breyer, the court’s foremost critic of the death penalty, laid out the court’s ruling in stark terms. “Bucklew has provided evidence of a serious risk that his execution will be excruciating and grotesque,” he explained. “The majority holds that the State may execute him anyway.”
Between the partisan dogfight to confirm Justice Brett Kavanaugh last fall and some Democrats’ troubling calls for court-packing this spring, it’s been a bad few months for the Supreme Court’s legitimacy. But the court has done itself no favors in its recent death-penalty rulings. In deciding that Bucklew had no right to an alternative method of execution, the majority does what it increasingly feels like it must do: mangle facts and precedent to keep the machinery of state-sanctioned death rolling. That habit may ultimately do more harm to the court than any external force ever could.
Russell Bucklew was not challenging his conviction in the 1996 murder of a neighbor. (Bucklew’s wife had fled to the neighbor’s home one night after a series of beatings.) Bucklew suffers from cavernous hemangioma, which causes blood-filled tumors to grow throughout his head, neck, and throat and they are too fragile to remove through surgery. His lawyers warned the court that lethal injection could cause the tumors to rupture midway through his execution, filling his lungs with blood and suffocating him.
Bucklew faced a daunting legal precedent. In the 2015 case Glossip v. Gross, the Supreme Court laid down a high threshold for death-row prisoners who challenge a state’s chosen method of execution. The prisoner must prove that the method in question offers a “substantial risk of severe pain” and propose an alternative method that would suffice. What’s more, the prisoner must also demonstrate that the alternative method is “feasible” and could be “readily implemented.” Bucklew asked the courts to choose nitrogen hypoxia to suffocate him instead. Several states, including Missouri, have laws to authorize the method, but none have used it yet.
Gorsuch spent part of the opinion disputing testimony by Dr. Joel Zivot, an anesthesiologist who appeared on Bucklew’s behalf in the district court. Zivot warned Bucklew would likely experience “suffocation, convulsions, and visible hemorrhaging” for “more than a few minutes to many minutes” before falling unconscious. But Gorsuch still concluded that there’s “nothing in the record to suggest that Mr. Bucklew will be capable of experiencing pain for significantly more than 20 to 30 seconds.” He also doubted the feasibility of nitrogen hypoxia, criticizing Bucklew for a “bare-bones” proposal:
He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.
Set aside the macabre demand for Bucklew to design the gas chamber in which he will be executed. Why is it his responsibility, and not the state’s, to make sure prison employees are protected from gas leaks?
Gorsuch’s questioning is part of a pattern for the Roberts Court, which has now made it incredibly difficult for prisoners to challenge the method by which they die, apparently because the conservative justices don’t want the challengers to succeed.
Death-penalty abolitionists have spent the past decade taking on execution methods, and have had plenty of success. U.S. drugmakers and the European Union were pressured into imposing an embargo on selling lethal-injection drugs to U.S. states. Some states responded by turning to more widely available sedatives or even to illegal and unregulated suppliers. Others simply stopped executing people.
In theory, this campaign shouldn’t affect the Eighth Amendment rights of the condemned. But some of the conservative justices have signaled that it does. “I guess I would be more inclined to find that [midazolam] was intolerable if there was even some doubt about this drug when there was a perfectly safe other drug available,” Justice Antonin Scalia mused during the Glossip oral arguments, referring to a controversial sedative used in two botched executions in Oklahoma. “But the states have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the states cannot obtain those two other drugs,” he noted.
Justice Samuel Alito was even more blunt. “Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty,” he told the prisoners’ lawyer. “Some of those efforts have been successful. They’re free to ask this court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla 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?” His majority opinion in Glossip enshrined his underlying premise: If abolitionists prevent a state from carrying out less painful executions, the Eighth Amendment allows states to use more painful ones.
This urge permeates Monday’s decision. Gorsuch complains throughout the majority opinion that it has taken more than two decades to execute Bucklew. “Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay,” he wrote, adding that last-minute stays of execution “should be the extreme exception, not the norm.” The timing of Bucklew’s lawsuit, coming twelve days before his scheduled execution, wasn’t a question before the court; Gorsuch’s criticism of it is wholly superfluous. His apparent purpose was to give the justices an opportunity to revisit their clash over a separate death-penalty case from February.
That case, Dunn v. Ray, seems to have intensified the justices’ fissures over the death penalty. Domineque Ray, a Muslim death-row inmate in Alabama, sued the state in January on religious-freedom grounds less than a fortnight before his scheduled execution. Alabama allowed Christian death-row inmates to have a Christian minister in the same room during their executions, but refused Ray’s request to have an imam by his side when he died—a fairly clear-cut violation of the First Amendment’s command of religious neutrality. The Eleventh Circuit Court of Appeals issued an order staying Ray’s execution so his lawsuit could proceed.
The court’s five conservative justices lifted the Eleventh Circuit’s stay and let Ray’s execution go forward. The majority said in a brief, unsigned statement that Ray had filed his appeal too late to be considered. Justice Elena Kagan, joined by three colleagues, wrote a forceful dissent from what she called a “profoundly wrong” decision. She criticized the majority for misstating the timeline in which Ray brought the case, for ignoring his strong claim of religious discrimination, and for “short-circuiting” the normal appellate process to reach their preferred result. Legal observers from across the political spectrum agreed with her analysis.
Last week, in Murphy v. Collier, the court halted an execution in Texas on similar grounds. Patrick Murphy, a Buddhist death-row inmate, challenged Texas’s practice of allowing Christian and Muslim clergy in the execution chamber but none from his faith. Murphy’s case prompted curiosity and speculation among court-watchers. Had some of the conservative justices reversed themselves in response to Kagan’s public shaming and the near-universal public criticism? The court, as usual, did not say. Justice Brett Kavanaugh alone wrote an opinion to concur with the move, stating outright that the Constitution “prohibits such denominational discrimination.”
But Gorsuch’s majority opinion on Monday dispels any suggestion of doubt on the justices’ part. It affirmatively cites Ray’s case as precedent and doubles down on the reasoning behind it. “For example, we have vacated a stay entered by a lower court as an abuse of discretion where the inmate waited to bring an available claim until just 10 days before his scheduled execution for a murder he had committed 24 years earlier,” Gorsuch wrote as part of his larger critique of execution delays. He then offered a more substantive defense of the court’s actions in Dunn in a footnote, noting a state statute that allows a “spiritual adviser of the condemned” to “be present at an execution,” but doesn’t specify the level of access. “The inmate thus had long been on notice,” Gorsuch wrote, “that there was a question whether his adviser would be allowed into the chamber or required to remain on the other side of the glass.”
It’s stunning that five Supreme Court justices would return to a point that has been so readily disproven by one of their colleagues. The aforementioned statute, Kagan explained back in February, “makes no distinction between persons who may be present within the execution chamber and those who may enter only the viewing room. And the prison refused to give Ray a copy of its own practices and procedures (which would have made that distinction clear). So there is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.”
The Roberts Court’s support for the death penalty is not out of step with public opinion: a majority of Americans support it, too. But in their zeal to keep capital punishment running, the justices are increasingly twisting themselves into absurdities. Death-row prisoners with rare medical conditions have to overcome impossible legal hurdles to avoid drowning in their own blood. Those with religious-freedom claims must act with superhuman perceptiveness or else be faulted by a merciless court on procedural grounds.
This is a dangerous path to trod. The Supreme Court’s legitimacy is grounded in the idea that the Constitution is more than whatever five justices happen to think it means at any given time. The post-Kennedy court’s approach to capital punishment suggests otherwise. The Eighth Amendment now seems to say whatever the court’s conservative majority think it says—any interpretation will do, as long as it keeps execution chambers running. That attitude is more corrosive to the court’s integrity than any political maneuver could ever be.