When Robin Konrad, who represented the inmates, said that was not her argument, Justice Samuel Alito pressed her further. “You can make one of two arguments. One is that the death penalty is unconstitutional because there is no method that has been used in the past or that can be devised that is capable of carrying that sentence out without inflicting some pain, pain that’s unacceptable,” he told Konrad. The other argument, Alito said, was a procedural one: The lower court made an error of fact with respect to midazolam's effectiveness, and that the Supreme Court should reverse it. Konrad took the second route.
What’s amazing is that nobody—not the lawyers for the inmates, not the state of Oklahoma, none of the amici—was making the first argument.
Death penalty opponents have long abandoned (but not conceded) the legal argument that capital punishment is intrinsically unconstitutional. Justices William Brennan and Thurgood Marshall stridently pushed this position when the Supreme Court ended and then revived the death penalty in the early 1970s. “Their persistent dissents were a kind of vigil against the death penalty, even virtually a silent vigil—closer to the tradition of civil disobedients who see themselves as prophets in a wilderness,” wrote Robert Burt in 1987. Harry Blackmun, who voted to revive the death penalty in 1976, famously renounced “the machinery of death” in 1994. John Paul Stevens and Lewis Powell also rebuked capital punishment after their retirement.
This argument often meets with strong resistance from originalists like Antonin Scalia and Clarence Thomas. The Fifth Amendment makes explicit reference to capital crimes, Scalia emphasized in Callins v. Collins in 1994, while the Fourteenth Amendment requires due process for the taking of life, in addition to liberty and property. If the Founders included references to the death penalty in the Constitution, how could they have intended to strike it down as inherently cruel? Death penalty opponents often retort that the Eighth Amendment’s cruel and unusual punishment standard must be viewed in light of society’s “evolving standards of decency.”
Procedural and sociological arguments against the death penalty—that it’s arbitrary, racially discriminatory, and doesn’t deter crime—are well-worn paths in the capital-punishment debate. They’re also settled constitutional questions at the Court. But the focus on the methods themselves, which Alito and Breyer alluded to, is relatively novel. The logic seems to be that since abolitionists failed to ban the death penalty itself, they could instead attack the methods used to carry it out, and thereby bring about the same result. It would be akin to legalizing guns, but outlawing bullets.
Some of the justices seemed wary of this approach, or at least wary of the attack on methods of execution. Samuel Alito asked why the judiciary should “countenance what amounts to a guerilla war against the death penalty” by activists who pressure pharmaceutical companies not to provide drugs. Antonin Scalia conceded that he might find midazolam “intolerable” if there were a safe alternative available, but seemed frustrated by the activists’ success in halting executions. “Now you want to come before the Court and say, well, [midazolam] is not 100 percent sure,” he told Konrad. “The reason it isn’t 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as relevant to the decision that you’re putting before us?”