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Justices Unmask Abolitionist Lethal Injection Shell Game

I am remiss in not having posted earlier about the SCOTUS argument concerning Oklahoma's lethal injection procedures in Glossip v. Gross.  Kent did a podcast on it here, and CJLF filed an amicus brief available through this link.

The media reports on it were no more illuminating than usual, except for one facet: They gave good coverage to Justices Alito and Scalia unmasking the shell game abolitionists have played with lethal injection drugs.

In short, the game is this:  Abolitionists demanded for years that, if we must have the death penalty, we move away from "grisly" methods and toward lethal injection. Largely, the country accommodated their demand.  Its reward was that the abolitionist lobby then started leaning on drug makers, many of them in Europe, to cut off sedation supplies.  When they did, jurisdictions with the death penalty moved to different drugs that are claimed to be less reliable.

Therefore  --  guess what  --  we can't have capital punishment anymore!

This was the game plan from the beginning.  Finally, at oral argument in Glossip, the abolitionists got called out on it.

"JUSTICE ALITO: Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions, there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other states could carry out executions painlessly.

"Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this court to overrule the death penalty.

"But until that occurs, 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? And so the states are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.

"Now, what is your response to that?"

"JUSTICE SCALIA: And I guess - I guess I would be more inclined to find that it was intolerable if there was even some doubt about this drug when there was a perfectly safe other drug available. But the states have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the states cannot obtain those two other drugs.

"And now you want to come before the court and say, well, this third drug is not 100% sure. The reason it isn't 100% sure is because the abolitionists have rendered it impossible to get the 100% sure drugs, and you think we should not view that as -- as relevant to the decision that -- that you're putting before us?"

Readers will be able to guess for themselves whether the Justices ever got a straight answer.

One story covering the argument and quoting the questions is here.


"Readers will be able to guess for themselves whether the Justices ever got a straight answer."

No guessing required.

"MS KONRAD: Justice Scalia, I don't think that it's relevant to the decision..."

The Court decides what is relevant. Counsel provide substantive answers to the questions asked of them. Of course if counsel wants to dodge the question in order to avoid discussing the shell game.....

Justice Scalia asked if she thought it was relevant and she answered no. I think differently, but that is not a dodge of the question as asked.

Edited from the above excerpt is her partial, interrupted answer to Justice Alito:

Well, Justice Alito, the purpose of the courts is to decide whether a method of execution or the way that the State is going to carry out an execution is, in fact, constitutional, and it -- whether we're going to tolerate -- is it objectively intolerable to allow the States to carry out a method in this way. And so --

Not a good answer, but the question was "what is your response?" so I suppose almost anything is an answer to the question as asked.

Any way you slice it, it's a dodge of the issue.

Not that I expected anything else.

BTW, I try not to be too critical of oral arguments:

I used to say that, as Solicitor General, I made three arguments of every case. First came the one that I planned - as I thought, logical, coherent, complete. Second was the one actually presented - interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night.

-- Justice Robert Jackson, 37 Cornell L.Q. 1 (1951)

Been there. Done that.

But I will go ahead and be a little bit critical. She seems unprepared for the question. Given that it was a major section of my brief, one would think she would have had a better answer ready. It's not uncommon for defense lawyers in SCOTUS to ignore my arguments. Some get away with it and some deeply regret it.

I drafted (but never argued) a few Supreme Court cases, and argued more than 100 cases in the federal courts of appeals.

Not once when questioned did I give the answer, "That's irrelevant," because (1) the answer is impudent, and (2) it's all but an admission that you don't HAVE a good answer. If a lawyer has a good answer, he gives it.

Most importantly, Justice Kennedy didn't seem to believe that Konrad's answer was responsive to the question.

On the subject of Kennedy, was his lack of questioning unusual in light of his past conduct in capital case oral arguments? If yes, what, if anything, does Kent see in his crystal ball about Kennedy's quiet demeanor?

Yes, he does appear to be uncharacteristically quiet in this argument. Here is the passage Paul refers to:

JUSTICE KENNEDY: That doesn't answer Justice Scalia's and Justice Alito's question. The question is: What bearing, if any, should we put on the fact that there is a method, but that it's not available because of because of opposition to the death penalty? What relevance does that have? None?

MS. KONRAD: Justice Kennedy, the fact that the State chooses a certain method should not should not have bearing on whether that method is constitutional.

JUSTICE SOTOMAYOR: Counsel, if there is no

JUSTICE KENNEDY: I -- I would like an answer to the question. You've been interrupted several times, and you still haven't given is it relevant or not?

MS. KONRAD: No. It's not relevant. The availability of another --

The only other time he speaks during the argument is when Justice Scalia says he was anxious to hear the third point of a multipoint argument after counsel got sidetracked, and Justice Kennedy says, "As was I."

We know that Justice Kennedy voted against a stay for the now-moot original lead plaintiff, Charles Warner. I see no indication from the argument that he has changed his mind, but he is one of the more difficult Justices to read from oral argument.

I'll actually take a slight bit of a contrarian view. I think that the issue is NOT whether the actions of the abolitionists are, in a sense, chargeable to the condemned. So I think, to a point, a "not my problem" answer is right. The problem is, of course, that Baze says that there must be a constitutional way to carry out executions. So, to the extent better drugs just aren't reasonably available, Baze teaches that less effective drugs have to be ok. And the idea has to be reasonably available----states shouldn't have to go through all sorts of nonsense just to get better drugs.

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