Sunlight is falling on divisive fights in the Supreme Court over the death penalty that are normally kept behind closed doors since the confirmation of President TrumpDonald TrumpJan. 6 committee chair says panel will issue a 'good number' of additional subpoenas Overnight Defense & National Security — Presented by AM General — Pentagon officials prepare for grilling Biden nominates head of Africa CDC to lead global AIDS response MORE's two picks for the court, underscoring the justices' deep divisions on the issue.
In one recent example, Chief Justice John Roberts signed on to a majority opinion written by one of two justices appointed to the court by Trump — Neil Gorsuch — that concluded that the Eighth Amendment, which prohibits cruel and unusual punishments by the federal government, does not guarantee a painless execution.
In another example, liberal Justice Stephen Breyer excoriated the court over the conservative majority’s decision to reject an Alabama man’s appeal of his execution without a full, in-person discussion by the nine justices.
The court’s other three liberal justices signed their names to Breyer’s dissent, an unusual move that made the disagreement highly public.
In both instances, the debate illustrated how the court has shifted to the right with the confirmations of Gorsuch and Brett KavanaughBrett Michael KavanaughGraham tries to help Trump and McConnell bury the hatchet Republicans keep distance from 'Justice for J6' rally Senators denounce protest staged outside home of Justice Kavanaugh MORE, the other justice nominated by Trump, and the departure of Anthony Kennedy — formerly the court’s swing vote.
And it has inflamed discussions surrounding the death penalty at a time when opponents feel they would have momentum to end the practice — but for the conservative court.
Some see a message in the decisions by the conservative majority that it intends to hold the line on the capital punishment.
“[The court] is sending some very strong messages, that it is opposing these broader efforts to involve the court in restricting, if not eliminating the death penalty,” said Richard Broughton, an associate professor of law at the University of Detroit Mercy who used to advise federal prosecutors on death penalty issues.
The Eighth Amendment fight concerned the case of a Missouri man, Russell Bucklew, who had been convicted of murder and sentenced to death.
He argued that he would suffer “excruciating pain” if he was put to death through lethal injection because of a rare medical condition that would cause him to choke on his own blood, and that this was unconstitutional.
Gorsuch, writing for the majority, argued that it was Bucklew’s responsibility to suggest an alternative to lethal injection if he truly wanted to avoid the pain, and accused the inmate of simply seeking to delay his execution. Separately, Justice Clarence Thomas said the punishment was not cruel because the state did not intend for it to be cruel to Bucklew.
In the minority dissenting opinion, Breyer accused the majority of issuing a ruling that “violates the clear command of the Eighth Amendment.”
He also opposed Gorsuch’s assertion that death row inmates challenging their form of execution must offer up an alternative to the court, calling it “an insurmountable hurdle.”
In the Alabama case, Breyer called out conservatives on the court for voting to authorize an execution without calling the full court to order.
In a scorching dissent issued shortly before 3 a.m. last Friday, Breyer said that he had asked the court to take no action until it met as scheduled later that day, but was denied the request.
Alabama had already held off on the execution, citing “practical” reasons. And the order wasn’t issued until after the midnight deadline, meaning the sentence would have been put off regardless.
Opponents of the death penalty argue that Gorsuch’s opinion not only set a dangerous precedent by stating that that a prisoner opposing their state’s form of execution needed to provide an alternative, but that it was cruel in stating the pain caused to the prisoner was irrelevant.
“In a decision that seemed out of touch with basic principles of compassion and human decency, the court matter of factly said that execution need not be painless and then created and then reiterated an impossible standard for prisoners to meet to avoid obviously torturous executions,” said Robert Dunham, the executive director of the Death Penalty Information Center. He called the opinion “astonishing for its harshness and cruelty.”
Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation and a contributor for the conservative think tank The Federalist Society, acknowledged the tough language but said he believed Gorsuch’s opinion was in line with the Constitution.
He also said it was good news for supporters of the death penalty.
“That was the strongest opinion on the death penalty as an opinion of the court” in recent history, Scheidegger said.
Elisabeth Semel, the director of the Death Penalty Clinic at the University of California, Berkeley’s law school, said that new conservative justices like Gorsuch and Kavanaugh appear to be trying to make sure fewer cases on the form of execution come before the court’s review.
Brandon Garrett, a professor at Duke Law, echoed that point. He said that inmates are still going to appeal their cases up to the Supreme Court, forcing them to confront these issues. But he said the recent ruling points to an attempt to limit the kinds of death penalty cases that can be considered.
“They don’t want to look at these claims,” Garrett said. “They’ve set up a standard that’s making it impossible to even consider execution claims.”
More states in recent years have taken steps to eliminate or minimize capital punishment. California Gov. Gavin NewsomGavin NewsomCalifornia to adopt all-mail voting Toppled statue of Spanish priest at California Capitol to be replaced by memorial to Native tribes Battle of the giants: Why saving giant sequoia isn't just about climate change MORE (D) earlier this month signed an order suspending executions in the state for the duration of his term, impacting 737 prisoners on death row.
Polling shows mixed views on the death penalty, which opponents have long said puts a disproportionate number of minority and poor people to death.
A Gallup poll released last October showed that only 49 percent of respondents believed that the punishment was applied fairly, a new low in the poll. But 56 percent said they still supported the penalty.
A player to watch on the issue going forward is Roberts.
While he has generally sided with conservatives on the death penalty, he’s also an institutionalist constantly monitoring the court’s standing.
“If there comes a point where the court’s procedural handling of these cases starts to make the court seem arbitrary or unfair,” Broughton said he might break with conservatives.
Roberts has sided with the liberal minority in one death penalty case so far this year, signing onto an opinion that the court wasn’t the right body to consider whether a man claiming that seizures caused him to forget his crimes could still be executed.
The ruling wasn’t about the death penalty itself, however, and experts say it’s unlikely that Roberts would change his opinion on the issue.
Ryan Owens, a professor of political science at the University of Wisconsin-Madison, said there could be death penalty cases where Roberts might “cast a counter-ideology vote.”
“But I don’t think we’re going to see some major leftward drift by the chief in these cases, and certainly as we move forward we’re not going to see that,” he said.
Scheidegger called the scenario of Roberts ruling against the overall constitutionality of the death penalty a “borderline impossibility.” But he didn’t rule out the potential that Roberts could side with the liberal minority of the court on the more technical aspects of capital punishment cases.
Semel said Breyer’s dissent revealing that the conservatives blocked the full court from debating the Alabama execution raises red flags about how seriously the justices are taking death penalty cases, and that Roberts could step in to try and correct that perception.
“The public’s confidence in the reliability and accuracy and above all fairness of decision-making really depends on transparency,” she said. “And this appears to be a majority of the court that is not interested in those principles.”