Mimesis Law
19 September 2021

Tweaking The Machinery of Death

July 6, 2015 (Mimesis Law) — Reporting from inside the Supreme Court chamber, Slate’s Dahlia Lithwick observed there was tension in the air as justice after justices read summaries of their opinions in Glossip v. Gross, an explosive challenge to Oklahoma’s lethal-injection protocol. Of the five written opinions in the case, four were read out loud, but most unusual to Lithwick was the last one, Justice Antonin Scalia’s.

He was in the majority in Glossip and thus had no real need to speak up. But he did anyway, animated by the dissenting opinion of Justice Stephen Breyer, who made headlines for announcing his willingness to entertain a future constitutional challenge to the death penalty.

Mind you, Glossip was not a case about the death penalty, but normatively it became one. To conservatives on the court, the case had little to do with midazolam, the controversial sedative at issue whose use the court upheld. Rather, it had more to do with a “guerilla war” against capital punishment by abolitionists, whose only concern is to see states’ drug supplies dry up and to stand in the way of the people’s democratic choices — including the choice to execute their own. Or in the words of Scalia, the insistence of “a vocal minority” on the Supreme Court that is willing “to replace the judgments of the People with their own standards of decency.”

That was a dig at Trop v. Dulles, a 1958 case that has anchored a number of death-penalty rulings over the years, including those striking the practice for juveniles and the mentally ill. But Scalia detests Trop, so much that he thinks that the “case has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.”

That’s clearly hyperbole, much like all the quips and quotables the media loves to highlight about him. But what isn’t hyperbole is Scalia’s very legitimate concern with Breyer’s invitation: that overruling the death penalty would do violence to the Constitution itself. Not just because the practice has already been ruled constitutional under the Eighth Amendment, but because the constitutional text expressly permits it.

Resting on the language of the Fifth Amendment, which speaks of “capital” offenses, Scalia wrote that it’s “impossible to hold unconstitutional that which the Constitution explicitly contemplates.” And then goes on to blast Breyer for adopting “the role of the abolitionists in this long-running drama, arguing that the text of the Constitution and two centuries of history must yield” to the two decades the liberal justice has served on the Supreme Court.

Say what you will about Scalia’s freakouts and memes, but this is a serious charge: it is hard to reconcile that the death penalty must yield to “evolving standards of decency in a maturing society” when the very text of the Constitution never made room for such an evolution or maturation in the first place. It’s a devastating textualist argument, so in-your-face that it may help explain why Justice Anthony Kennedy was awfully silent in Glossip.

Kennedy loves the Eighth Amendment and has relied on the Trop test to write or join opinions striking the death penalty for juveniles and people with mental retardation. And just a few weeks ago, he made an invitation of his own when he called for a legal challenge to solitary confinement, even invoking Kalief Browder in his appeal.

So re-tinkering with the machinery of death, as Justice Harry Blackmun once famously put it, won’t be so easy as to just take Breyer at his word and bring an Eighth Amendment challenge, filled with the kind of graphs and statistics about how awful the death penalty is. It will also require taking into account Scalia’s textualist complaint, Trop’s evident conflict with it, and Kennedy’s inexplicable silence in the midst of it all. Glossip may have given a shot in the arm to death-penalty litigators — here’s hoping it gives them a chance to think long and hard that this last stand may truly be do or die for them.

Main image via Flickr/Andrew Magill.

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