Supreme Court Dispatches

A Horrifying Day at Court

Death brings out the worst in the justices.

The new and unused execution chamber of the U.S. Penitentiary in Terre Haute, Indiana.
Wednesday’s oral arguments at the Supreme Court suggested that the justices were deeply divided over Glossip v. Gross, a case on lethal injection protocol. Above, the execution chamber of the U.S. Penitentiary in Terre Haute, Indiana.

Photo by Reuters

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.

Death row inmates Richard Glossip, Charles Warner, and other Oklahoma prisoners then filed an Eighth Amendment challenge to the use of midazolam in the protocol. They lost in the federal courts, which permitted the use of midazolam, so the prisoners sought a stay of execution at the Supreme Court, which was denied on Jan. 15. Justices Sotomayor, Breyer, Ruth Bader Ginsburg, and Elena Kagan filed a rare and angry dissent from the court’s refusal to hear the case. That same evening, Oklahoma used midazolam in the execution of Charles Warner. His last words were reportedly: “My body is on fire.” The court agreed to hear the inmates’ case a week later—minus the deceased Warner.

Just to be clear who’s on which teams in the Glossip argument, Kagan establishes with his lawyer, Robin Konrad, that the central issue in the case is that “there is this huge range of uncertainty about what happens when someone is given this drug.” Then Justice Samuel Alito comes out gunning for Konrad about the tactics of death penalty opponents: “Why is Oklahoma not using sodium thiopental?” he asks. Konrad starts to respond. “You don’t know?” interrupts Alito. “Let’s be honest about what’s going on here.” Explaining that capital punishment is highly controversial, he asks, “Is it appropriate for the judiciary to countenance what amounts to a guerrilla 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?”

In other words, Alito wants Konrad to explain why her client isn’t somehow reasonably on the hook for the scarcity of really good execution drugs. As Justice Antonin Scalia frames it: All the really effective drugs have been rendered unavailable “by the abolitionists putting pressure on the companies that manufacture them so that the states cannot obtain those other drugs.” Justice Anthony Kennedy soon interrupts to demand an answer to this question, pointing out that Konrad has been interrupted several times and still hasn’t given an answer to the question about the “abolitionists” who are really to blame for the fact that we can’t kill people more efficiently in America. Breyer has to step in to remind Konrad, “It’s not you. You didn’t purposely hide these other kinds of drugs.”

And Roberts wonders idly (and quite creepily) whether Konrad has an opinion on the constitutionality of a new Oklahoma law that would asphyxiate prisoners with nitrogen gas.

It goes downhill from here. When Oklahoma’s solicitor general, Patrick Wyrick, attempts to explain why the state protocol is constitutional, Kagan calls the reasoning of the district court judge on at least one issue “gobbledygook.” When Wyrick begins to read from the record, Sotomayor stops him, saying outright: “I have a real problem with whatever you’re reading because I’m going to have to go back to that article.” She adds: “I am substantially disturbed that in your brief you made factual statements that were not supported by the cited sources and, in fact, directly contradicted” them and warns “so nothing you say or read to me am I going to believe until I see it with my own eyes.” She lays out three areas where, in her view, the state altered or fudged data to support its argument. Wyrick keeps trying to explain, but she, as well as Kagan and Breyer, simply don’t let him finish a thought. Breyer accuses Wyrick’s expert—one of whose witness reports consists largely of printouts from the website—of shoddy science: “The key refutation of your expert rests on zero,” he says. Wyrick keeps trying to talk. Kagan grows more and more furious. “Suppose that we said we are going to burn you at the stake, but before we do, we are going to give you an anesthetic before we burn you alive,” the usually very temperate Kagan asks Wyrick. “Maybe you will feel it; maybe you won’t.”

When Wyrick’s light goes on to show that he is out of time, Roberts addresses him directly: “Mr. Wyrick, to an extent that’s unusual even in this court, you have been listening rather than talking. And so I’m happy to give you an extra five minutes, if you’d like.”

It’s the kind of public reprimand you rarely hear at the court, and whether it was directed at Sotomayor alone or the scrappy triumvirate of Kagan, Breyer, and Sotomayor, it’s the kind of sentiment that the chief justice must think to himself a good deal on the bench but that he rarely allows himself to speak aloud. As Wyrick concludes his remarks, the liberal justices glower from their respective bad-justice chairs. Nobody likes to be called an asshole by the chief.

In Konrad’s rebuttal, the animosity spikes up again when she tries to address the burning-at-the-stake hypothetical. Alito interjects that this is “an irrelevant point.” Kagan retorts that “potassium chloride is burning someone alive; it’s just doing it through the use of a drug.” The two look like they could happily administer to each other a little snort of lethal injection at this point. The tension in the chamber is palpable and unpleasant. One side genuinely thinks the issue here is unscrupulous death penalty abolitionists and their bullying tactics. The other openly accuses the state of Oklahoma of lying in its pleadings.

Roberts worries almost obsessively about appearances at the court—appearances of partisanship and politicization, and also about justices who take ideological swats at one another in public. In September, in a speech at the University of Nebraska, he said he was worried that the partisan rancor in Washington might “spill over and affect us. … That’s not the way we do business. We’re not Republicans or Democrats.” Judges are different in his view; they are always supposed to be above that kind of thing. But as long has been said at the court, death is different too. It seemingly brings out the very worst in us all.

Often when you catch the chief in a situation like Wednesday’s—in which the justices’ gloves are off and their back teeth are showing—you get the sense that he wishes he weren’t the only grown-up in the room. Or perhaps more correctly, that he didn’t always have to be.