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The Supreme Court's big death-penalty fight just exploded into the open

Alex Wong/Getty

The Supreme Court equivalent of a bar brawl erupted on the bench Monday, as the justices' ruling on a case that is technically about a lethal injection drug in Oklahoma got overshadowed by a heated side debate over the larger question of the death penalty, period.

In the case, Glossip v. Gross, conservative justices voted 5–4 that Oklahoma is allowed to use a lethal injection drug that may cause a defendant severe pain. The decision in Monday's case, written by Justice Samuel Alito, was mostly about Oklahoma's drugs; so was the dissent, written by Justice Sonia Sotomayor.

But in a second dissent, liberal Justices Stephen Breyer and Ruth Bader Ginsburg said they want the Supreme Court to reconsider whether the death penalty is ever constitutional — a question the Court hasn't touched in 40 years. The mere suggestion was enough to piss off Justices Antonin Scalia and Clarence Thomas, who both wrote concurring opinions with the majority just to respond to Breyer's argument. Furthermore, both Breyer and Scalia read their opinions out loud from the bench — even though neither one was the major opinion for their side. "That's extremely rare. In fact, I can't remember the last time it happened," said SCOTUSblog's Tejinder Singh.

The oral argument in this case was pretty heated itself — with Chief Justice John Roberts basically admonishing Justice Elena Kagan for talking too much. As another SCOTUSblog author wrote this morning, "There are some serious feelings going on here."

The bench fight probably doesn't mean the justices are about to formally take up the issue of the death penalty. But it does reveal a deep unease among liberals and conservatives about the way death-penalty cases proceed through the courts right now. That could mean the court is ready to consider deeper reforms. But they couldn't disagree more on what those might be.

Breyer has changed his mind

As recently as 2011, Justice Breyer told Business Insider that it wasn't the Supreme Court's job to decide whether or not the death penalty is constitutional. "It is mostly imposed by state law, rarely federal law," he said. "Only the legislature can abolish the death penalty."

That's the result of a pair of cases from the 1970s — the last time the Supreme Court tackled capital punishment itself. In 1972, the Court banned the death penalty, saying the way it was then being practiced in the states constituted an "arbitrary punishment" that violated the 8th and 14th Amendments. In 1976, the Court ruled that states had fixed their death penalty policies, and states began executing prisoners again.

But Breyer has had concerns for years about how the death penalty is currently being practiced — in particular, the long (and lengthening) wait between when someone is sentenced to death and when he's executed. Now, he thinks the problems with the death penalty in practice are so bad that they prove states can't be trusted to regulate capital punishment fairly. As he said in his concurrence: "The circumstances and the evidence of the death penalty’s application have changed radically since then [1975]. Given those changes, I believe that it is now time to reopen the question."

This isn't just rhetoric. Breyer wants the Court to stop just hearing cases on individual death-penalty rules and defendants and hold a hearing on the constitutionality of the death penalty itself.

Justice Ruth Bader Ginsburg cosigned Breyer's call to reconsider the death penalty's constitutionality. But the other two liberals on the Court, Justice Sonia Sotomayor and Justice Elena Kagan, did not. (The main dissent in the case, written by Sotomayor, focused on Oklahoma's lethal-injection drugs — which it called "the chemical equivalent of being burned at the stake.")

Death Penalty Gif
Pew Research Center

Breyer's suggestion infuriated Scalia and Thomas

Even though Breyer's concurring dissent wasn't the main dissent in the case and only represented two of the justices, it was so infuriating to the Court's conservative wing that both Justice Scalia and Justice Thomas wrote opinions of their own (and cosigned each other's) rebutting Breyer.

Scalia's opinion, even though it's technically on the majority side of the case, reads more like one of his dissents — it calls Breyer's opinion "full of internal contradictions and (it must be said) gobbledy-gook," and it accuses Breyer and Ginsburg of "rejecting the Enlightenment" by not allowing the people of each state to decide about capital punishment for themselves. It's a pretty broad attack on all of Breyer's arguments against the death penalty, but its fundamental point is that the Court simply doesn't have the authority to abolish it — which is exactly what Breyer was saying back in 2011. In fact, Scalia says, the real problem is that the Court has been overstepping its bounds on the death penalty for decades — by hearing case after case about whether the death penalty is constitutional against particular defendants (like the mentally handicapped) or by particular means (like Oklahoma's experimental execution drugs), etc.

Justice Thomas focuses more on defending juries that sentence someone to death than states that allow it by law. But the argument is similar: the Court has already gone too far when it comes to death-penalty cases. In that respect, they actually share Breyer's basic premise: that the Court needs to stop tinkering around the edges with the death penalty.

Ironically, of course, this debate is happening in the secondary opinions of a case that is, at its heart, about tinkering around the edges: about a particular review of a drug combination in a particular state. So both supporters and opponents of the death penalty are showing they feel the Court has lost the forest for the trees and needs to be willing to tackle the question of the death penalty itself.

Both sides are frustrated with how long it takes to resolve a death-penalty case

It's not just that Breyer and Scalia agree that the death-penalty status quo is bad. They actually share a major complaint: because of a proliferation of appeals and delays, death-penalty cases take decades to resolve.

In 2012, the average execution happened nearly 16 years after the death sentence was handed down:

time on death row

(Bureau of Justice Statistics via the Death Penalty Information Center)

The main reason for the delay is that prosecution and defense lawyers are engaged in an arms race. Each side races to get more and more experts involved in every stage of the process — from psychological evaluations to jury selection — and spends more and more time preparing for trials and appeals.

On one hand, a drawn-out legal process means that the defense has more opportunities to point out problems with the original trial or to find evidence that exonerates the defendant. So it's an important safety mechanism to ensure that the wrong person doesn't get executed. In fact, one of the big reasons that death-row inmates are more likely to get exonerated than other inmates is that they have the benefit of a long legal process. But on the other hand, prisoners now spend decades on death row. That in and of itself, Breyer argues, is a harsh punishment. Furthermore, it's hard to argue that the death penalty deters anyone from committing a crime when it takes decades for crimes to be punished.

Breyer thinks that this is a no-win situation: "A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale for imposing a sentence of death in the first place." And it's a big reason he thinks that the death penalty might have been constitutional in 1975, but isn't constitutional today.

Scalia's biggest complaint, on the other hand, is that it's the Supreme Court's own fault that it's gotten into this position. Because of its cases looking at particular circumstances or applications of the death penalty, it's opened the door for every single death-row defendant to jump through a series of hoops before he has to be executed.

Because their diagnoses of the problems are so different, of course, it's not surprising that the justices disagree on what needs to be overturned. But all three of them end up arguing that the Court needs to rethink how it got here.

It's important to remember, as Ohio State University law professor Doug Berman pointed out to me in an interview earlier this month, that even when the Supreme Court isn't giving a full hearing to a death-penalty case, the justices still end up having to read and reject appeals — often multiple times — before the defendant is executed. So "they are the only individuals in the nation that make this life-and-death decision in every single death penalty case in the nation, and have to do so every time." Berman thinks that's part of the reason that death-penalty cases often get so heated on the Court; it's also probably a reason they are particularly annoyed with the long process between sentencing and execution.

Does the Court have the votes to overturn the death penalty?

So if Breyer and Ginsburg succeeded in getting the Supreme Court to consider whether capital punishment is constitutional, would they win? Almost certainly not. There's no indication that any of the five justices in the majority of the Oklahoma case think the death penalty violates the Eighth Amendment. And while Justices Sotomayor and Kagan might believe that, even they didn't sign onto Breyer's opinion — so they may disagree or simply not be ready to address the question.

The debate does prove something that observers saw in oral arguments in the Oklahoma case: the justices are deeply divided on the death penalty, and the split is getting pretty acrimonious. In previous cases, the feelings the justices have about the death penalty get compartmentalized into fights over the facts of the particular case at hand. That's what happened in the oral argument over this case and in the main opinions on both sides: Justice Sotomayor almost certainly has some feelings about Oklahoma's drugs.

But the older justices — Breyer, Ginsburg, Scalia, and Thomas (four of the oldest five justices on the court) — are impatient to bring the subtext out in the open. By doing so, what they've actually established is that there are at least four votes on the Court for a broader look at the death penalty — in particular, one that looks at whether the long delays are acceptable and whether it's more important to make absolutely sure that death-row inmates are guilty or to make sure that justice is served in a relatively swift fashion.

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