The Upcoming Supreme Court Lethal Injection Death Penalty Case:

How It Will Likely Illustrate the Serious Ideological Divisions That Continue to Separate the Justices

By EDWARD LAZARUS
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Thursday, Sep. 27, 2007

With the welter of cases that the Supreme Court accepted for review yesterday, it became all the more likely that this Term (which begins next Monday) will continue last Term's dramatic trend away from Chief Justice John Roberts's ideal of a more unified, collegial court. Instead, we are very likely to see a Court that continues to be riven by emotionally-charged ideological divisions.

Even before yesterday, the justices were set to review highly contentious cases involving such hot-button political issues as the rights of Guantanamo detainees and the contours of the Second Amendment's right to bear arms. As of yesterday, they have also granted review of, among other issues, the constitutionality of voter registration laws that demand photo identification, and of the way 37 states use lethal injection to carry out the death penalty. In this column, I'll focus on the latter case, and the way it may divide the Court

The History of, and Issues Concerning, the Use of Lethal Injection

Of all the cases on the docket, the lethal injection death penalty case may well prove the most divisive, and reflect most clearly the unbridgeable chasm that currently divides liberal and conservatives in our legal culture. Two hundred and twenty years after the Constitution was written, we are as much at sea as ever about how to read our founding charter.

In the 1980s, most of the states that have capital punishment switched over from electrocution to lethal injection, on the theory that injecting a cocktail of poisons would be more painless and humane than the "old sparkies" that then prevailed (and sometimes malfunctioned, to horrific effect). Today, of the 38 death penalty states, all but Nebraska use lethal injection, and almost 90% of all executions since 1976 have used the needle rather than the chair or other methods.

For decades, the lethal injection states have used the same three-drug combination - sodium thiopental (a short-acting anesthesia), pancuronium bromide (which paralyzes the muscles), and potassium chloride (which stops the heart). There is a growing consensus, however, that this now long-since-antiquated cocktail, even when properly administered, causes extraordinary and unnecessary pain. Indeed, in many places, the cocktail used to kill humans is banned for use in the euthanasia of animals. And, as might be expected of such a morbid process, the process of execution by lethal injection, like the process of electrocution before it, is also prone to human error, further exacerbating the risk of unnecessary pain.

For these reasons, a number of states have halted the use of lethal injection, pending a review of their respective death penalty "protocols." And elsewhere, federal judges have stepped in to stop executions or prompt further review.

Why the Lethal Injection Case Will Directly Touch on Divisions Regarding Constitutional Interpretation

Over the last several years, a few of the Justices have expressed interest in taking up the issue of lethal injections - and, as of yesterday, that number finally reached the critical mass of four votes necessary to grant review. It's not hard to see why. Around the country, different courts have been using different standards to assess whether the three-drug cocktail violates the Eighth Amendment's prohibition on cruel and unusual punishments. In granting review of a case coming from Kentucky, the Court has stepped in to create a single standard for deciding under what circumstances, if ever, a risk of unnecessary pain in executions is so significant as to violate the Constitution's Eighth Amendment.

It is hard to imagine a case more perfectly suited to capture the jurisprudential dilemma that has consumed and divided our legal culture for the last thirty years - namely, the tension between interpreting our Constitution in a way that is responsive to the nation's history and experience, and making the interpretive process a free-for-all in which unelected and generally unaccountable judges impose on the Constitution their own personal political and moral beliefs.

This dilemma arises in significant part because some of the Constitution's key phrases (like "due process") are inherently amorphous. The lethal injection case raises a classic example, for it will turn on an interpretation of one of the Constitution's less pellucid phrases - the prohibition on "cruel and unusual" punishments. There is no self-evident benchmark for what is too cruel or too unusual. Rather, deciding what punishments are "cruel" or "unusual" seems to cry out for some sort of subjective judgment - a search for standards and benchmarks that will never be completely value-neutral.

But if defining "cruel and unusual" necessarily calls for some inherently subjective assessment, what limits are there on judicial discretion in creating a constitutional definition? Surely, the constitutional definition of "cruel and unusual punishment" should have a more objective meaning than simply whatever at any given moment a majority of Supreme Court justices think the term should mean, based on their own various senses of individual morality.

How the Lethal Injection Case Will Be Viewed by the Court's Left and Right Wings

Inside the Court, the way the different Justices approach this vexing interpretive problem will inevitably lead to a ferocious battle over the lethal injection case.

On the right wing of the Court, Justices Antonin Scalia and Clarence Thomas purport to have solved this vexing interpretive problem by adopting the jurisprudence of original intent, whereby judges interpret the Constitution according to the Framers' intended definition of the terms in question. Under this theory, the term "cruel and unusual punishment" does not derive meaning from our "evolving standards of decency," as more liberal justices would have it. Instead, the term's meaning was fixed at the nation's founding.

This methodology provides an easy answer to the issues surrounding lethal injection. At the time of the framing, the nation countenanced any number of methods of execution potentially more painful than lethal injection. Hanging and the firing squad were commonplace. Indeed, the last time the Supreme Court considered the constitutionality of a particular mode of execution - more than 100 years ago, in the case of Wilkerson v. Utah - it confirmed the constitutionality of executions by firing squad.

That decision, from Scalia and Thomas's perspective, was right then and is right now. Give the prisoner a blindfold and a cigarette, and get on with it.

More generally, from Scalia's and Thomas's perspective the idea of micromanaging the methodology of execution is not merely wrong, it's absolutely nuts. The Constitution, they believe, gives judges no warrant to second-guess how elected official decide to carry out the death penalty. Moreover, to think otherwise is to exercise in the terrible conceit of mistaking one's own values for those enshrined in the Constitution.

On the opposite wing of the Court, the four most liberal Justices (John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer) will view the lethal injection issue from the other end of the telescope. To them, the language of the Eighth Amendment invites an interpretation that takes into account contemporary mores - and as this method of interpretation has been standard judicial practice for many decades, they have strong Court precedent on their side. From this perspective, it is absurd to think that the Constitution locks in Eighteenth Century ideas about what is and is not "cruel" or "unusual" punishment (especially with respect to a mode of punishment unfathomable at the time).

Moreover, to the extent these Justices will consider the Framers' views relevant, the focus will not be on the specifics of lethal injection. Rather, this wing of the Court will focus on a more general inquiry into whether the Framers intended the Eighth Amendment to prohibit the government from gratuitously risking the infliction of unnecessary pain. After all, they will ask, isn't the readily-avoidable infliction of pain - a risk of pain we would not voluntarily inflict on a dog or horse -- the very essence of "cruelty" for any era?

Boiled down to the brutal essentials, the right-wing will be accusing the left of being unprincipled softies, and the left-wing will be accusing the right of being handmaidens to a form of torture.

The Key Swing Justice Whose Vote May Well Decide the Case's Outcome

Caught somewhere in the crossfire (and no doubt firing shots of their own) will be the Court's three non-originalist conservatives, Chief Justice Roberts and Justices Anthony Kennedy and Samuel Alito. It is difficult to imagine either Roberts or Alito taking an expansive view of what the Eighth Amendment requires. Much more likely, they will view states as having very broad discretion over the implementation of the death penalty. And with jaundiced eyes, they will view the challenges to lethal injection as part of the abolitionist community's decades-long effort to stop executions by whatever means possible. That is not a cause they will be inclined to assist.

The wild card, as so often is the case with the Roberts Court, will be Justice Kennedy. On one hand, he may be the Court's most moralistic justice, the one most likely to read the Constitution through the prism of his own values or, perhaps more accurately, of the values to which he thinks the nation should aspire. This part of Kennedy is likely to find abhorrent the notion that, out of inertia, 37 states use a badly outmoded and potentially horrific method of execution. No good government should aspire to this low standard.

On the other hand, Kennedy has been generally very tough on the issue of the death penalty and very skeptical of death penalty abolitionist tactics. He will worry about the slippery slope of a decision forcing states to rethink their execution protocols. In particular, he will want to avoid any suggestion that states must constantly upgrade their methods to fit advances in science, and will not want to join a decision that predictably opens the door to a steady stream of new attacks on execution methodology.

On balance, I suspect that Kennedy's sense of morality will outweigh his concerns about not over-regulating the states, leading him to reach the result that the current protocol for lethal injection violates the Eighth Amendment. But whichever way the case comes out, the shouting will be heard from coast to coast, and will remind us yet again that we are as far as ever from settling the core issues of how to read our Constitution.


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Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.