Jack Leason, 19, of Wellington, New Zealand, left, at protest against the death penalty outside the Supreme Court Monday. (Photo: Jacquelyn Martin/AP)
The Supreme Court affirmed Oklahoma’s right to use an experimental drug in lethal injections Monday in a bitterly fought case that makes for a fitting end to an unusually contentious term.
The justices, who now are headed out on their summer vacations after a streak of surprising victories for the liberal wing, will most likely need it to cool off before the term begins again in October. From same-sex marriage to upholding Obamacare to protecting discrimination claims in housing, it’s been a big term for the court’s four liberals. This conservative win in lethal injections did not seem to soothe Justice Antonin Scalia, who on Monday morning threw back the very words Justice Stephen Breyer said in 2007 at the end of a term featuring a string of conservative victories. “It is not often in the law that so few have so quickly changed so much,” Scalia said from the bench.
Four justices read their opinions and dissents out loud from the bench — very unusual moves that suggest each felt strongly about the case. The rhetoric ran hot: In her dissent, Justice Sonia Sotomayor accused the majority of effectively saying the state could burn the petitioners at the stake if they wanted to.
Justice Samuel Alito, joined by his four conservative colleagues, wrote the opinion dismissing the petitioners’ arguments that the drug midazolam was not adequately knocking out inmates before other, painful drugs were injected into them to kill them. States resorted to the experimental drug after the manufacturers of the barbiturates typically used in lethal injections refused to sell them to death penalty states because of the companies’ opposition to capital punishment.
Alito wrote that the petitioners — three prisoners sentenced to death — had failed to show that midazolam showed a “substantial risk of severe pain,” or to identify another form of execution that would subject them to less pain. The death penalty is constitutional, Alito wrote, so there must be a constitutional method to carry it out.
Sotomayor, writing for the liberal justices in the principal dissent, expressed outrage at Alito’s insistence that prisoners must identify a humane way to be executed.
“But under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated,” she wrote.
In the majority opinion, Alito fired back: “That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.”
Meanwhile, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, made an argument for the abolition of capital punishment altogether in a separate dissent, arguing that it’s applied so randomly and infrequently that it is “highly likely” that it’s unconstitutional under the Eighth Amendment. Breyer’s 46-page dissent lays out research showing that the death penalty is applied in a racially biased way, is too often meted out to innocent people, and is not shown to have a deterrent effect on criminals.
Scalia wrote a scathing concurring opinion that specifically tore into the Breyer dissent, amounting to a side squabble among the justices that barely touched the facts of the Oklahoma lethal injection case.
“Welcome to Groundhog Day,” Scalia wrote, adding that liberal justices have long attempted and failed to do away with the death penalty by using the Eighth Amendment. He wrote that Breyer’s argument is “gobbledy gook,” and attacked Breyer’s use of lengthy capital punishment delays as a reason to strike down capital punishment. Scalia argues that a legal movement to expose capital punishment to more judicial scrutiny is responsible for these delays.
“Indeed, for the past two decades, Justice Breyer has been the Drum Major in this parade,” he wrote.
Justice Clarence Thomas, not to be left out, also wrote a concurring opinion upholding the use of midazolam. His gruesome opinion contains vivid details of horrific murders and rapes that have resulted in a death penalty sentences, challenging Breyer’s contention that the sentence is not, in fact, reserved for the most gruesome criminals and is often applied randomly.
But Breyer responded that Thomas “misses” the point, which is that the death penalty is applied too randomly to be legal.
“The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary,” he wrote. “From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?”
These 127 pages of overlapping and angry opinions are not likely to be the last words on the death penalty or lethal injections from the Supreme Court. And the upcoming term may prove to be as full as fireworks as this one. On Monday, the justices also announced they will hear a major affirmative action case in the fall.