Reuters

Is it constitutional to execute people by burning them at the stake? What if they are anesthetized first? The Supreme Court mulled this macabre question during oral arguments Wednesday in the case Glossip v. Gross, the first major challenge to lethal injection to reach the justices in almost a decade. With executions halted in most states until the Court rules, the case could have major implications for how the death penalty is enforced nationwide.

The case centers on the use of midazolam, an anesthetic linked to botched executions in three states. Both sets of lawyers arguing the case avoided larger questions of whether lethal injection, or the death penalty itself, might be unconstitutional. Instead, they focused on the specifics of midazolam’s constitutionality as part of a three-drug protocol. But some of the justices seemed preoccupied at times with a broader argument, and tried unsuccessfully to push the lawyers into debating it.

The most interesting line of reasoning came from Justice Stephen Breyer. “Perhaps there is that larger question that if … there is no method of executing a person that does not cause unacceptable pain, that, in addition to other things, might show that the death penalty is not consistent with the Eighth Amendment,” he mused at one point. “Is that so or not, in your opinion?”

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?”

This would be relatively new ground for the Supreme Court, which has never struck down a method of execution as unconstitutional. Perhaps the last formidable challenge to an execution method came in 2000. Florida had just carried out its third successive electrocution where something went awry. The state’s electric chair, nicknamed Old Sparky, had set two inmates’ heads on fire and disfigured a third. After the third inmate, the Court agreed to review electrocution’s constitutionality. Before the justices could hear arguments, however, Florida switched to lethal injection and rendered the case moot.

But today, the Court found the chance to consider whether burning a man alive is constitutional, after all. Justice Kagan said that without proper sedation, the potassium chloride would cause inmates to feel like they are “burning alive from the inside,” echoing Michael Lee Wilson’s dying words last year. So, she suggested to Oklahoma’s solicitor general, “suppose we said, we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects.” Would that be unconstitutional, she asked? “That isn’t the world that we live in,” he replied, but the comparison stuck.

Alito tried to invert Kagan’s burning-at-the-stake metaphor by expanding upon it. “If an anesthesiologist rendered a person completely unconscious, and then that person was burned alive, would that be cruel and unusual punishment?” he asked Konrad. “Because potassium chloride is kind of like that, isn’t it?” Kagan added. “It’s being burned alive from the inside. That’s what it is.”

“The Founders say burning at the stake is unconstitutional,” Konrad replied to the grim line of questioning. “It creates an Eighth Amendment violation. It’s cruel and unusual. But in your hypothetical, if there was a way to ensure that that was done in a humane way, there could perhaps be. I don’t think that any state would try to do that—“

“That’s an incredible answer,” Alito replied. “You think that there are circumstances in which burning someone alive would not be a violation of the Eighth Amendment?” Konrad quickly pivoted to the medical facts of the case, but the exchange hung over the courtroom. It remained unclear whether the Court would strike down the use of midazolam. Even Alito apparently agrees that some methods of execution are too cruel to be constitutional. What the court now has to decide is where to draw that line.

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