Conservatives on the Supreme Court are apparently getting frustrated with on-the-ground tactics in the campaign against the death penalty.
Justice Samuel Alito said Wednesday that critics have waged "what amounts to a guerilla war against the death penalty," by pressuring pharmaceutical companies to stop selling proven lethal-injection drugs, then filing legal challenges when the states turn to new, potentially riskier methods.
"Let's be honest about what's going on here," he said during oral arguments over Oklahoma's use of a drug, midazolam, that has been linked to several botched executions.
The tone of Wednesday's argument was barbed on both sides.
Justice Sonia Sotomayor accused Oklahoma of misrepresenting scientific data to make the drug seem safer than it is. She told Oklahoma's attorney she was "substantially disturbed" by factual assertions in the state's argument that she did not believe were truly backed up by the supporting evidence.
"Nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes, in context," she said.
States tried two other anesthetics—one of which the Supreme Court explicitly vetted—before turning to midazolam. But the companies that made those drugs began taking steps that made them harder, if not impossible, for states to obtain.