I rarely want to write a follow-up on a post, but this one was too interesting to pass up.[1] On April 29, the Supreme Court heard oral argument in Glossip v. Gross and considered the constitutionality of the Oklahoma drug protocol using midazolam. The argument focused quite a bit on the technical aspects of the administration of midazolam, but it did not lack exciting moments.

One of my favorite moments, which also received the majority of the press’s attention, was when Justices Scalia and Alito talked about a “guerilla war against the death penalty,” which makes it impossible for the states to obtain capital punishment drugs, other than midazolam, so why is it, the two justices asked, that the same abolitionists claim that the use of midazolam is unconstitutional. Also, of course, when Justice Sotomayor told the Oklahoma Solicitor General Patrick Wyrick “nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes in context,” after pointing out that Oklahoma had made factual assertions in their brief that were not supported by the cited sources.

First things first, and a hypothetical cram down of the votes is in order. No surprises there. Justices Kagan, Sotomayor, Ginsburg, and Breyer seem to be ready to say that the Oklahoma drug protocol is unconstitutional; Justices Scalia, Alito, Thomas (as per usual Justice Thomas remained silent during the oral argument), and Chief Justice Roberts appeared to be on the opposite side; and, once again, it all comes down to Justice Kennedy’s vote. However, Justice Kennedy didn’t say a whole lot during the argument. He did join the conservative wing of the court insisting that Ms. Konrad answer the question “what bearing, if any, the Court should give to the fact that there is [another] method, but that it’s not available because of opposition to the death penalty? … None?” Other than that, he didn’t say much. In addition, one cannot read too much into the fact that he was in the majority in Baze v. Rees. Therefore, it is hard to predict which way the Court is going to rule.

Back to the most talkative Justices’ questions and the answers they received, I frankly cannot see how the efforts of the abolitionists have any bearing on whether a lethal injection drug protocol is constitutional under the Eighth Amendment. Evidence suggests, and petitioners argued, that Midazolam does not have the required pain relieving properties and its use bears a constitutionally unacceptable risk of pain. As Justice Kagan pointed out, if the execution does not go properly and Midazolam is ineffective in creating the coma-like state it is supposed to create, then when the potassium chloride is administered to stop the inmate’s heart, “it gives the feeling of being burned alive.” Let’s not forget that when Michael Lee Wilson was executed in January 2014, twenty seconds after the execution started, his last words were “I can feel my whole body burning.”

These are facts; facts that support the legal claim that drug protocols using Midazolam are unconstitutional. How these facts came to be is completely irrelevant. Is it the efforts of the abolitionists that have made other drugs unavailable? More power to them. Is the Supreme Court going to punish them for that? Are we really going to read a Supreme Court decision saying that if it’s the victim’s fault that the killers got their hands on a gun, then they are to be acquitted? I want to believe that this series of questions was Justices Alito and Scalia expressing their own personal frustration that death penalty proponents are being somewhat successful, rather than a legal argument. As Professor Keir Weyble said “You can’t hold that against Glossip, it’s not just abolitionists, it’s the market.”

Professor John Blume also commented on the oral argument: “Truthfully, it’s very difficult to tell. The swing vote, Justice Kennedy, did not say a lot and what it said can be interpreted in multiple ways. It will be close. It’s somewhat optimistic to say that the Court will hold that you cannot use midazolam for lethal injections. On the other hand, there was initially the thought that they granted cert to “shut down” lethal injection litigation, and nothing that happened during the argument supports that, so it’s really hard to predict how it’s gonna go.” On the use of midazolam, Professor Blume explained that although the states could just elect not to use the three drug protocol, and instead just use one drug, like we do with the euthanasia of animals, but the states insist on the three drug protocol because it gives the appearance that the inmate goes peacefully to sleep.

I do not purport to know what the Supreme Court is going to decide. But I do know it’s not going to be the death penalty win that I was hoping it would be. Professor Weyble explained “There seems to be some institutional desire to avoid litigation whac-a-mole over lethal injection method and protocols.” After all, there was some suggestion in Baze, especially Stevens’ dissent, that unless the Court decides to take definitive action, the justices will have to constantly deal with these claims. However, it is hard to see how the liberal wing of the Court can realistically get five votes to eliminate lethal injection litigation. So, it seems like the best result we can hope for is a narrow decision putting a stop to botched executions with the use of midazolam. That is until the same states that now use midazolam find a new way to violate the Eighth Amendment and we wait for another seven years for the Supreme Court to put a stop to that.

^[1] I would like to thank Prof. John Blume, Sheri Johnson, and Keir Weyble for not only taking the time to discuss the oral argument with me, but also for being my teachers and mentors throughout my –many– years at Cornell Law School.