A Horrifying Day at Court [View all]

[Agschmid]

Death brings out the worst in the justices.

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In theory, what the nine justices of the U.S. Supreme Court were all but shouting about Wednesday was midazolam hydrochloride, a sedative used by Oklahoma and other states as part of their lethal injection protocol. The very technical question before the court is whether midazolam reliably causes a deep, comalike unconsciousness in the prisoner, or whether it does not, allowing him to feel the excruciating effects of the other drugs used subsequently to end his life. The constitutional claim is that a failure to sedate the prisoner sufficiently would violate the Eighth Amendment’s ban on cruel and unusual punishment. A series of botched executions in Oklahoma, Ohio, and other places in recent months has drawn public attention to the fact that we may—as Justice Sonia Sotomayor colorfully put it this week—create “a substantial risk of burning a person alive who’s paralyzed, correct?”

It looked at first like it would be a debate about the trial court’s medical fact-finding, a discussion that would be more Gray’s Anatomy than Black’s Law Dictionary, but the arguments quickly blew up into a proxy war about ideology and politics and the ugly rift between the justices on how we feel about killing people in America. Oral arguments are usually spirited and enthusiastic. But they are rarely unpleasant and embarrassing. By the end of the hour of arguments in Glossip v. Gross, Chief Justice John Roberts had to step in and scold his colleagues for both their rancor and their rudeness to the oral advocates appearing before them. It was a cringe-worthy last day of arguments of the term, but in some ways perhaps a fitting one.

There have been a lot of reports in recent years about the deep ideological fractures at the Supreme Court. The justices are as divided as they have ever been on issues ranging from race and religion to reproductive health, guns, and campaign finance reform. They like to tell us—to use Justice Stephen Breyer’s preferred locution—that they are more than merely “nine junior varsity politicians.” But Wednesday’s performance certainly suggested that they were closer to nine junior varsity high schoolers, with nasty tempers and bitter resentments.

There is a bit of history here. In 2008, in Baze v. Rees, the Supreme Court upheld the use of a three-drug cocktail used by most states to administer the death penalty. The supply of sodium thiopental, the barbiturate sedative states used to use, has since dried up because of boycotts from foreign suppliers and companies opposed to capital punishment. Oklahoma changed its lethal injection protocol last year to replace sodium thiopental with midazolam. Shortly thereafter, that state badly botched the execution of Clayton Lockett with an apparently insufficient dose of midazolam. He writhed and bucked on the gurney for 43 minutes, as he suffered an apparently agonizing death.

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