The Supreme Court’s 5-4 decision in Glossip v Gross is a clear victory for states that wish to continue to execute prisoners, and an obvious defeat for death row inmates in Oklahoma (and elsewhere) who had hoped that at least five justices would recognize and react to the changing nature of lethal injection drugs in America. It is a decision that both maintains the status quo on capital punishment and guarantees us all countless more years of litigation over the means of execution.
The Court’s five conservatives (as they had hinted during oral argument) reaffirmed the right of states like Oklahoma to tinker with their injection protocols; to add an untested new drug like Midazolam, for example, even in the absence of compelling evidence that it masks the pain of death for the condemned. This aspect of the ruling allows Oklahoma (which famously botched the execution of Clayton Lockett last April) and other states to use this drug and to experiment with other drugs.
The justices in the majority also doubled-down on the chilling precedent established seven years ago in Baze v. Rees, a Kentucky case that helped establish modern lethal injection precedent. A prisoner who wants to successfully complain about a state’s injection process (still) must offer a viable alternative to it. You can’t kill me this way, the convicted murderer must argue, you have to kill me this other way that will cause me less pain. This construct is both impossible and unlawful, death penalty abolitionists argue, but so far they have been unable to sway Justice Anthony Kennedy or any other conservative justice to their view.
But what’s really new about Glossip v. Gross, and what in the end may be its most significant contribution to the fight over capital punishment in America, is that it has brought out into the open a debate about the substance of the death penalty that has not occurred in the Court since at least the Baze decision in 2008. Two justices today — Justices Stephen Breyer and Ruth Bader Ginsburg — went so far as to conclude that it is “highly likely” that the death penalty violates the Eighth Amendment. And they called upon their colleagues to address the core issue in a future case.
Justice Breyer’s epic dissent — longer than the majority opinion — in turn provoked Justices Antonin Scalia and Clarence Thomas to respond. I may be wrong but I think this is the first time since Justice John Paul Stevens’s concurrence in Baze that the Court has engaged in such a colloquy on the essence of capital punishment itself (as opposed to some tangential point). And it harkens back to Justice Blackmun’s famous “machinery of death” denunciation of capital punishment in Callins v. Collins in 1994 or even further, to Justice Thurgood Marshall’s relentless dissents in death penalty cases toward the end of his career on the bench.
It’s all talk for now, unless and until two or three more justices come around to the views of Breyer and Ginsburg. But, still, it’s surely a sign of progress for death penalty advocates. There will be a lot of analysis and commentary written soon about Glossip and its place along the path of Eighth Amendment law. But there are only two essential readings for which you should make time today. Read Justice Breyer’s dissent as he makes the case against capital punishment in modern America. And then read Justice Scalia’s biting response to it. They represent the tip of the spear on the debate over death penalty in America, the argument from which all of the other arguments will follow.