The Supreme Court turned away an appeal on Monday brought by a man who faces the very real possibility of being tortured to death. Missouri intends to execute Ernest Johnson, who was sentenced to death in 1994, using pentobarbital; due to Johnson’s unique medical condition, the drug may inflict excruciating agony as he dies. Just two years ago, the court’s conservative majority—including, most prominently, Justice Brett Kavanaugh—suggested that an inmate in this exact situation could demand a different, less painful execution.
Johnson did precisely what Kavanaugh asked, asking that Missouri kill him by firing squad instead of lethal injection. Yet Kavanaugh and his five conservative colleagues ignored his plea on Monday, condemning Johnson to a death that may be violent and prolonged. In her pointed dissent, Justice Sonia Sotomayor highlighted her colleague’s perverse retreat from his earlier promise. It appears that Sotomayor, like Justice Elena Kagan, is fed up with Kavanaugh’s habit of posturing as a moderate, then voting like a reactionary. When the stakes are low, Kavanaugh knows how to sound like a reasonable, empathetic centrist. But when an actual person’s rights are on the line, Kavanaugh’s vote is nowhere to be found.
Johnson v. Precythe, the case that SCOTUS swatted away on Monday, constitutes yet another challenge to the grisly impact of lethal injection on the human body. In 2008, Johnson—who was convicted of murder and sentenced to death in 1994—underwent brain surgery to remove a tumor. In 2008, doctors removed about 20 percent of his brain tissue, causing severe scarring that left a brain defect. They did not eliminate the entire tumor. This trauma to Johnson’s brain, combined with remaining tumor cells, triggered epilepsy. Missouri now wants to kill him using pentobarbital, but the drug both triggers seizure and exaggerates sensations of pain. In 2016, Johnson alleged that lethal injection would therefore trigger a massive seizure and inflict an unconstitutional amount of pain, and initially asked that Missouri execute him using nitrogen gas instead.
This request was not far-fetched, since Missouri law explicitly authorizes the use of nitrogen gas in executions. In 2019’s Bucklew v. Precythe, however, the Supreme Court ruled that Missouri’s death row inmates could not demand death by gassing as an alternative to lethal injection. The court’s conservative majority held that gassing was not a viable option because it could not be “readily implemented” and had “no track record of successful use.” (Missouri’s neighbor Oklahoma currently uses gas for executions, as have many other states throughout history.) In short, Missouri did not want to figure out how to gas its prisoners, and the Supreme Court would not force it to learn. A state’s refusal to adopt new methods of execution can justify torture.
Bucklew was a brutal decision that was made possible by Justice Anthony Kennedy’s retirement. Kennedy served as a moderating force on Eighth Amendment issues, often limiting the scope of conservative decisions on capital punishment. And, indeed, shortly before he retired, Kennedy cast the deciding vote in a 5–4 decision staying the execution at issue in Bucklew. By the time the court heard arguments in the case, though, Kennedy had retired. It seems his hand-picked successor, Kavanaugh, was content with Bucklew’s extremism, since he joined the majority.
While Kavanaugh did not moderate Bucklew from a legal perspective, he did deploy a rhetorical smoke screen to make the decision sound less cruel. The justice wrote a concurring opinion to “underscore” an “additional holding” of Bucklew that favored capital defendants, one that “all nine Justices today agree on.” Yes, an inmate must present an alternative method of execution to avoid torturous lethal injection, the justice wrote. But, he added, “the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision.” Thus, there is “little likelihood” that an inmate will not be able to identify a feasible alternative. Kavanaugh also pointed out that Missouri had even conceded, at oral argument, that inmates could request a firing squad, even though that method is not authorized by state law.
Kavanaugh’s concurring opinion in Bucklew set out a clear path for Johnson. He could no longer demand death by nitrogen gas. But he could ask for death by firing squad, as the state itself admitted before the Supreme Court. So he tried to amend his complaint to plead death by firing squad as an alternative to lethal injection. Then he ran into a roadblock at the 8th U.S. Circuit Court of Appeals. According to the 8th Circuit, Johnson’s request came too late; he should have requested a firing squad earlier, before Bucklew came down, and before SCOTUS gave him a legal basis to do so.
How could that be? As Kavanaugh explained, Bucklew marked the first time the Supreme Court declared that capital defendants could request a method of execution that is not authorized under state law. Yet the 8th Circuit did not see it that way. It held that Bucklew did not constitute “an intervening change in law” that would allow Johnson to amend his complaint.
Kavanaugh should have leapt at the chance to correct this holding, which contradicted his own concurrence. But on Monday, he declined the opportunity. His inaction prompted Sotomayor, in dissent, to foreground his broken promise. Sotomayor’s dissent repeatedly cited Kavanaugh’s concurring opinion in Bucklew, quoting from it extensively. It was Kavanaugh, she noted, who explicitly wrote that Bucklew changed the law (which the 8th Circuit denied). It was Kavanaugh who wrote that inmates “in exactly this situation should have little trouble identifying an available alternative.” And it was Kavanaugh who “emphasized” Missouri’s agreement that an inmate could request a firing squad.
Johnson’s “only misstep,” Sotomayor wrote, was “failing to predict Bucklew and address it pre-emptively. He bears no fault for that.” The fault lies with Kavanaugh, who extended the hope of relief, then walked away when Johnson tried to take him up on it.
It requires just four votes for the Supreme Court to hear a case, and all three liberals voted to take up Johnson to fix the 8th Circuit’s mistake. If Kavanaugh meant what he said in Bucklew, he would have provided the fourth vote to hear Johnson. By turning away Johnson’s appeal instead, Sotomayor concluded, Kavanaugh has rendered his own words “an empty gesture.”
Although the liberal justices sound disappointed by this about-face, they do not seem surprised. At this point, it’s what they should expect from Kavanaugh. The justice leans on Kennedy-esque rhetoric to make rulings sound more palatable, only to abandon his compromise position when the rubber hits the road. Rather than empathize with the powerless and vulnerable, as Kennedy sometimes did, he uses performances of empathy to deflect criticism of his decisions’ ramifications.
Kavanaugh only stands to benefit from this virtue signaling. He can rule against Dreamers, LGBTQ people, criminal defendants, and religious minorities without sounding like the bad guy. Kavanaugh’s words may soothe his own conscience. But they are cold comfort for those, like Ernest Johnson, who must suffer the consequences of his deeds.
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