In a week of transcendent jurisprudence, the Supreme Court’s endorsement of Oklahoma’s death penalty cocktail stands as a demoralizing reminder of what business as usual looks like on the Roberts Supreme Court. By a 5-4 margin in Glossip v. Gross, the Court found no constitutional barrier to executioners employing midazolam, the barbiturate designed to render prisoners unconscious so they don’t feel pain while other drugs in the cocktail stop their heartbeat and breathing. This despite ample evidence, as Justice Sonia Sotomayor wrote in her dissent, that midazolam, a relatively mild sedative, may do little to protect prisoners on the lethal injection gurney from unbearable and protracted pain associated with the cocktail’s other drugs: what she called “the chemical equivalent of being burned at the stake.”
And yet: Sometime in the not-so-distant future this case may be assessed as a turning point. That’s because Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, used the occasion to issue a careful but unambiguous dissent not just from Oklahoma’s particular lethal injection cocktail but also from the American death penalty itself. Breyer openly pleaded for someone to bring a case which would allow the Court to fundamentally reconsider capital punishment for the first time since 1977: “I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.” And he went so far as to lay out a litigant’s roadmap: data, charts and arguments demonstrating today’s death penalty is both cruel (massive inequities, the likelihood of false conviction and execution) and unusual (barely one-third of the US population now lives in states with an active death penalty).
Breyer’s dissent joined by Ginsburg marks an extraordinary step for two senior justices who, whatever their private feelings, have on the bench supported capital punishment throughout their careers. The last sitting Justice to oppose capital punishment actively and persistently was Thurgood Marshall, who believed the twisted legacies of racism and poverty render any notion of an equitable death penalty a bitter joke and so would not vote to uphold any execution for any reason. Since Marshall’s retirement in 1991 a few other justices have come to share his view—all of them, interestingly, Republican appointees—but always as career-end declarations. Nixon’s appointee Justice Harry Blackmun—whom Breyer replaced in 1994—wrote that he would “no longer tinker with the machinery of death,” but that was in the very last months of his very last term. Justices Lewis Powell (Nixon) and John Paul Stevens (Ford), who both voted to reinstate capital punishment in 1977, eventually said they wished they could take it back—but by that point each had retired from the Court. For a quarter century, through four presidencies and two chief justices, the Supreme Court has been the ultimate death-qualified jury; the only difference between the justices has been how they measure, as Ginsburg put it in her confirmation hearings, “the tension between finality and fairness.”
Breyer and Ginsburg, both on the Court for more than 20 years, now seem determined to change that pattern of judicial deathbed conversions. Instead, they are inviting abolitionists to bring the right case while they are still alive on the bench and kicking. As a strategic step their dissent this week provoked seething counterarguments by Justices Scalia and Thomas, couched as concurrences with Justice Samuel Alito’s majority lethal injection opinion.
Why now for Breyer and Ginsburg? In part, perhaps, simple disgust with the terms of debate in Glossip—the unseemly spectacle of the highest court in the land arguing the finer points of how to poison human beings, in the face of far more basic and widespread inequity in the death penalty. In part maybe because both Ginsburg and Breyer are old enough to be conscious of legacy, and are reluctant to be the latest justices to renounce the death penalty when it is too late to do anything with that rethinking.
But the most important reason is probably what Justice William Brennan (himself a canny death penalty opponent) described as the most important skill of a Justice: the ability to count to five. Breyer and Ginsburg know that Justice Anthony Kennedy, the author of this week’s marriage equality ruling, has also become a vocal critic of solitary confinement and other prison abuses. He, along with Obama appointees Kagan and Sotomayor, may be persuadable. And while Kennedy voted this week in favor of Justice Samuel Alito’s ruling upholding the constitutionality of midolazapam, he notably did not sign his conservative colleagues’ vociferous Breyer-bashing concurrences.
Breyer and Ginsburg seem to be betting that more than two justices share the understanding, implicit in their dissent, that the death penalty is as deeply implicated in the politics of racism and fear mongering as the Confederate flag. In putting capital punishment on the Court’s notional docket now, Ginsburg and Breyer are suggesting that at least one member of the conservative bloc may be open to defection while he can still do some good.