Throughout the debate over legalized same-sex marriage, the scenario leading the parade of horribles has involved the polygamist households that would see their own opportunity for legalization once the traditional one man-one woman marriage was no longer legally sacrosanct. (Leave aside for now all those household arrangements in Scripture that don’t comply with what today’s traditionalists consider traditional.) Indeed, Chief Justice John Roberts and Associate Justices Samuel Alito and Antonin Scalia gave the hypothetical substantial attention during oral argument, and in their dissenting opinions, in the recently announced Obergefell v. Hodges. On Wednesday, the hypothetical became less hypothetical:
A Montana man said Wednesday that he was inspired by last week’s U.S. Supreme Court decision legalizing gay marriage to apply for a marriage license so that he can legally wed his second wife.
Nathan Collier and his wives Victoria and Christine applied at the Yellowstone County Courthouse in Billings on Tuesday in an attempt to legitimize their polygamous marriage. Montana, like all 50 states, outlaws bigamy — holding multiple marriage licenses — but Collier said he plans to sue if the application is denied.
“It’s about marriage equality,” Collier told The Associated Press Wednesday. “You can’t have this without polygamy.”
It’s tempting to laugh this claim out of court, but two decades ago, James Obergefell’s claim that the Fourteenth Amendment compelled Ohio to grant formal recognition to his long-term commitment to another man was considered outlandish as well. What Collier won’t have behind him, according to the AP account, is interest-group support. The ACLU has not yet responded to Collier’s request for the organization to represent him, and I’d imagine that pretty much every seemingly intractable civil liberties problem will have to be resolved conclusively before the ACLU considers tackling this one. Even the pro-polygamy advocacy group Principle Voices appears skeptical of Collier’s stance. According to the group’s director, polygamist households don’t want the government scrutiny that would come with legalization, and as such would prefer protection against anti-cohabitation laws to a judicial holding legalizing plural marriage.
From a legal standpoint, the distinctions between plural marriage and same-sex marriage between two people (this article adeptly summarizes many of the key differences) should suffice to keep claims like Collier’s from gaining any traction in the short term. What will keep the pro-polygamy movement from achieving long-term success, as the gay rights movement eventually did, is the probable lack of logistical support from legal civil rights activists. Why will this support prove harder to come by for proponents of plural marriage equality?
- LGBT individuals are represented in the legal profession, and among the legal elites who spearhead public law litigation, in a way that polygamists and would-be polygamists are not. It is possible that the latter might be more inclined to come out, as it were, in response to a change in the legal status of polygamy. But it’s hard to imagine that there is a meaningful number of individuals just biding their time until the Supreme Court reverses its holding in Reynolds v. US (1878) and requires states to recognize plural marriage.
- Much of what shifted public opinion on same-sex marriage had to do with greater numbers of heterosexuals recognizing that they knew family members, friends, and co-workers who are gay. And support for marriage equality appears to correlate with having a large number of gay individuals in one’s professional or personal circles. Would a similar pattern emerge if would-be polygamists could be open about their relationships, and monogamists would come to understand better the triad-next-door? Perhaps, but not in the short term. And LGBT individuals could cast their appeals in terms of the unfairness of denying them access to civil marriage, with the attendant social legitimation and wide array of government benefits, based on their internal wiring. Until plural marriage candidates can present compelling scientific evidence that they were “born that way,” they will have to convince monogamists that their lifestyle choices should not preclude the extension of official recognition to their desired arrangements.
- Justice Anthony Kennedy’s majority opinion in Obergefell stressed the denial of dignity resulting from treating same-sex couples’ long-term commitments as unworthy of recognition by the state. People wishing to form plural marriages might find themselves frustrated or inconvenienced by the state’s restricting them to one spouse at a time. But it’s hard to argue that their dignity has been compromised.
- Finally, it’s hard to envision civil rights advocates taking up a cause that has virtually no chance of success. Consider the three Obergefell dissenters who claimed that using the Fourteenth Amendment to require marriage equality for same-sex couples will inevitably require formal recognition of polygamy. What are the odds that they would vote in support of Nathan Collier’s claim, were it to land before them? Scalia will officiate a gay wedding before that happens. And Collier would have no chance of picking up support from the justices comprising the Obergefell majority, as they could readily find ways to distinguish between two-person marriages and plural marriages.
I’m aware that legal scholars and political observers would have made similar arguments about gay marriage two decades ago, and I recognize the non-zero probability that I’ll be eating these words someday. But a lot of legal mobilization would have to occur before that probability rises much above zero.
As the Supreme Court began to take up the question of whether the Affordable Care Act properly allowed subsidies to go to those purchasing insurance on the federal health exchange, as opposed to state-run exchanges, two lines of argument began to emerge. One focused on the plain language of the phrase “Exchange established by the State,” which, according to the petitioners, clearly meant that only purchasers at state exchanges could receive subsidies. This interpretation required a studied disregard for the ACA’s broader purpose of expanding health care access, as well as other textual provisions that appear not to distinguish between purchasers at state exchanges and purchasers at healthcare.gov. But it allowed ACA opponents to blame Congress for sloppy drafting and to hold Congress responsible for fixing it.
A second line of argument claimed that the the disputed language was not a bug, but a feature of the ACA. By this account, Congress deliberately limited subsidies to states with their own exchanges, as a way of strong-arming recalcitrant states into participating. This claim had little support from the historical record, as no one involved with the ACA negotiations thought that subsidies were being withheld as a means of commandeering states to create exchanges. (Indeed, the dissenting opinion in the first ACA Supreme Court case worked on the assumption that eligibility for subsidies did not hinge on your home state’s decision to create its own exchange.) It also lacked any logical foundation: Why would Congress, on the cusp of achieving the century-old dream of national health insurance, include a feature that, if triggered, would sabotage the ACA altogether? Whether it could convince five justices, however, remained an open question that provoked no small amount of agonizing from ACA supporters.
Justice Antonin Scalia’s dissent, while not as dyspeptic as what followed the next day, is caustic in presenting its application of textualism to the ACA’s subsidy language. The bulk of the opinion focuses on what he sees as the absurdity in holding that “Exchange established by the State” can encompass the federal exchange. While paying lip service to the need to interpret contextually, he considers the relevant text so clear in its meaning that no consideration of context can compel a contrary result. After all, why bother including “by the State” if you intend to make subsidies available to all, irrespective of who created the exchange? If you wish to consider this phrase a drafting error–and Scalia’s not convinced that it is–then Congress, and not five justices, should be the actor to fix it.
As for the alternative history of the ACA presented by the petitioners, Scalia does not rely much on it. He does refer to the theory as “plausible,” but that’s about as far as he goes. The bulk of the opinion pits Scalia’s textualism against the purposive approach favored by the majority. It is noteworthy that in a case holding such policy and political (if not legal) significance, Scalia was unable to convince two fellow conservatives on the Court to join a textualist opinion against the Obama administration’s interpretation of the ACA’s subsidy language.
All the hand-wringing over incipient chaos in American health care can now cease (at least until the next election), thanks to the Supreme Court’s 6-3 ruling today in King v. Burwell. Chief Justice John Roberts, who wrote the majority opinion, and Justice Anthony Kennedy joined the four-justice liberal wing in rejecting the claim that the text of the Affordable Care Act (ACA) limited health insurance subsidies to individuals living in states with their own health exchanges. As a result, the approximately 6.4 million people who receive their subsidies through participation in the federal exchange will not be at risk of having their insurance yanked out from under them.
Some highlights from the majority opinion (thoughts about the dissent to come in a later post):
* Not only did defenders of the ACA get the policy outcome they sought, they got the legal justification on their preferred terms as well. That is, Roberts, while critical of the “inartful drafting” appearing in several parts of the ACA, insisted on understanding the crucial phrase “established by the State” within the broader context of the statute, and in particular the purposes Congress sought to achieve through the law. The potent quotable: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
* What makes the Roberts opinion particularly satisfying is its use of the dissenters’ own words to undermine the petitioners’ position. Petitioners claimed that Congress had deliberately sought to limit subsidies to states with their own exchanges, as a way of strong-arming recalcitrant states into participating. Without the subsidies, however, insurance would cease to be affordable for many recipients, and the resulting adverse selection would produce a “death spiral” damaging the health insurance markets at large and leaving millions of Americans without coverage. The idea that Congress would build this complicated regulatory machine and then include a prominent self-destruct button that could sabotage it seems laughable, but the fact that litigation hinging on this claim had made it to the Supreme Court at all meant that it had to be addressed. Roberts disposes of it by quoting Justice Antonin Scalia’s dissent from the first ACA litigation: “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.” Scalia’s words came in the context of trying to explain why the entire ACA had to fall if any part were to be found unconstitutional, but while he might regret their use in the King majority opinion, even the most powerful jurists in the country don’t get to call backsies.
As for how the statute’s text should be interpreted, Roberts quotes a 2014 opinion from Scalia to argue against the kind of rigid literalism that Scalia has insisted is not how true textualists should go about interpreting statutes. Rather than take four words, in a 900-page statute, out of context, the justices, in Roberts’ words, “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”
* The majority declined to pursue an alternative approach rooted in the principle, enunciated in the 1984 Chevron v. NRDC decision and used by the Fourth Circuit in King, that when statutory text is ambiguous, courts should defer to the interpretive judgment of the agency responsible for administering the statute, unless the agency’s construction is unreasonable. For some ACA supporters, the Chevron claim offered an escape hatch, in that the act’s defenders wouldn’t have to argue that the Internal Revenue Service’s construction of the statute was the only correct one; they would simply have to show that it was a permissible one. This option was decidedly Plan B for ACA supporters, however, as it would have left the subsidies vulnerable to a Republican administration’s reinterpretation of the statutory provision. The majority took the question off the table by claiming primary responsibility for determining the contested phrase’s meaning, in light of the unlikelihood that Congress would have delegated to the IRS the authority to make policy judgments–especially concerning something as central as eligibility for health insurance subsidies–outside the agency’s competency.
* Another road not taken involved a federalism claim that had appeared in the Court’s earlier invalidation of the ACA’s Medicaid expansion. Giving states the choice between expanding Medicaid and forfeiting all federal Medicaid funding, said the Court in 2012, wasn’t really a choice at all. Rather, it unconstitutionally coerced the states into adopting the federal government’s preferred policy. A parallel federalism-based argument emerged from Justice Anthony Kennedy during oral argument in King, this time centered around giving states a choice between creating health exchanges and cratering their health insurance market. Like the Chevron deference argument, the federalism-based justification came with some unpleasant side effects for liberals, namely a protection of state prerogatives that could be extended to hamstring future federal regulatory efforts. In the end, though, Kennedy’s earlier musings about federalism did not find their way into the majority opinion.
King v. Burwell‘s ultimate impact, aside from the blow to Roberts’ standing among conservatives, will be more political than legal. After all, no new legal ground was broken, no soaring principle reaffirmed. What we have here is a run-of-the-mill case of statutory interpretation that is noteworthy only because the policy and political stakes were so high. The last Supreme Court ruling to feature such a high ratio of political significance to legal significance, Bush v. Gore, played a central role in the selection of a president. Will King v. Burwell help to select the next president? Stay tuned….
As the Supreme Court gratuitously grabs at the question of whether states, when drawing their own legislative districts, may count residents who are ineligible to vote, I’m trying very hard to find some basis to disagree with Josh Marshall’s assessment:
It is increasingly difficult to find any unifying theory or rationale behind the Supreme Court’s election and election financing decisions other than the goal of securing the electoral interests of the Republican party. That sounds harsh. But a simple process of elimination leaves little other conclusion. States rights, originalism, deference to legislatures, various constructions of democratic theory and a lot else are controlling except when they’re not controlling. Most of the decisions line up with the conservative jurisprudence espoused by the Court’s conservative semi-majority. Except when they don’t. Cases are plucked out of the lower courts long before the high court has any obligation or need to intervene. The new case which will review the ‘one person, one vote’ rule which has been reining [sic] law for half a century would likely diminish the voting power of cities vs rural areas, minorities vs whites and Democrats vs Republicans, if decided on behalf of the plaintiffs. In other words, why not?
The short version of the dispute: In 1964, the Supreme Court held, in Reynolds v. Sims, that state legislative districts have to be drawn in compliance with the principle of “one man one vote.” The ruling capped a series of Warren Court decisions designed to address the problem of rural over-representation in legislatures resulting from a decades-long unwillingness to redraw district lines to account for population shifts caused by urbanization. What the Supreme Court never settled conclusively was the matter of who counts as a person when apportioning according to one person-one vote.
The plaintiffs in Evenwel v. Abbott, two rural Texans represented by Project on Fair Representation (the conservative legal group known for its attacks on affirmative action and its takedown of key portions of the Voting Rights Act), are claiming that reliance on total population results in districts that are roughly equal in population, but unequal in eligible-voter population.The resulting “vote dilution,” in their view, constitutes a violation of the Fourteenth Amendment’s Equal Protection Clause, akin to the injury claimed by urban dwellers pre-Reynolds.
Other observers have pointed out how a victory for the petitioners would result in decreased representation for communities featuring disproportionate numbers of individuals who are ineligible to vote, such as children, prisoners, or non-citizen immigrants. But there are two other insidious, yet under-appreciated, dimensions:
- A victory for the petitioners would create perverse incentives to enact the modern equivalent of the notorious three-fifths compromise, in which each slave counted as 3/5 of a person for purposes of apportioning House seats and, by extension, votes in the Electoral College. Article 1, Section 2 of the Constitution states that House seats are to be apportioned according to “their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The Fourteenth Amendment removed the three-fifths language but left the remainder intact. At first blush, then, the references to persons, as opposed to voting-age persons or even citizens, would appear to present a substantial barrier to the petitioners’ claim. But the issue at hand in Evenwel isn’t about apportioning representation to states, the subject of the quoted text above; it’s about apportioning electoral power within states. If the petitioners’ claim is upheld, Texas could gain national-level political clout by virtue of its sizable population of non-citizen residents, while at the same time denying those individuals any voice in government at the state level, and perhaps later at the federal level if the logic of Evenwel were to be extended to congressional districting.
- A win for the petitioners creates a specific perverse incentive when it comes to restoring voting rights to ex-felons. While states have generally moved since the mid-1990s toward making it easier for felons to have their voting rights restored, a few have moved in the opposite direction. For example, in 2011 Florida reversed a four-year-old liberalization and now requires ex-felons to wait between five and seven years before they may apply for reinstatement. Iowa similarly imposed a requirement to apply for reinstatement, while South Carolina and Tennessee expanded the category of ex-felons ineligible for reinstatement. These restrictions are hardly neutral in their effects, given the demographics of America’s prison population and persistent racially polarized politics. As a result, any effort at liberalization would have to overcome opposition motivated at least in part by concerns that restoring voting rights would boost Democrats’ electoral chances.
If you favor the status quo, you can take comfort in the unwillingness of any federal court to agree with the petitioners’ position. But you should also be concerned that the Supreme Court was so eager to tackle an issue on which lower courts have been unanimous to date. And you better hope that Josh Marshall is wrong on this one.
As much as I’ve wanted to see the much-rumored left-libertarian convergence on criminal justice reform bear fruit, I’ve remained skeptical that sufficient numbers of conservatives would be willing to take on prosecutors, the prison-industrial complex, and the prospect of primary challengers accusing them of softness of crime. But last week, the Nebraska legislature surprised many observers, including me, by becoming the first conservative-leaning state in over four decades to abolish capital punishment, in all likelihood over the veto of Governor Pete Ricketts.
The coalition responsible for this measure brought together legislators with widely divergent reasons for supporting abolition. It included liberals who oppose the death penalty on principle and as a practice with racially disparate impacts. It also included small-government conservatives such as Nebraska Senator Laure Ebke, who asked, “If government can’t be trusted to manage our health care … then why should it be trusted to carry out the irrevocable sentence of death?” But other considerations brought a wider range of legislators into the abolitionist camp:
- A claim, advanced by religious conservatives in the legislature, that self-identifying as pro-life compels opposition to the death penalty
- Concerns about the costs of the legal and penal apparatus of capital punishment, compared to life without parole.
- Shortages of drugs used for lethal injection
- The infrequency with which the death penalty has been carried out in the state (no one has been executed in Nebraska since 1997)
Nebraska is not alone when it comes to legislative activity seeking to abolish or restrict capital punishment. According to the Death Penalty Information Center, since January abolitionist legislation has been introduced in 13 of the 31 states other than Nebraska that currently have the death penalty. My initial expectation was that these proposals would be quixotic efforts put forth by lone-wolf legislators. But abolitionist proposals are often accompanied by other measures designed to limit, if not end, capital punishment. We can group states as follows:
- Abolition, and no other bills: Delaware, Kansas, Montana, Pennsylvania, Washington
- Abolition, and separate bills limiting the death penalty or seeking further study of issues surrounding the death penalty: Kentucky, Missouri, Ohio, South Dakota
- Abolition, and separate bills seeking to preserve or expand the death penalty: Arkansas, Indiana, Wyoming
- Abolition, and separate bills on both sides: Texas
Optimistic abolitionists would label this activity a sign of genuine progress, in that bills have been offered in a number of staunchly conservative states. More skeptical observers would note the greater success of proposals protecting the death penalty, through either expanding the number of offenses qualifying for it, protecting suppliers of drugs used for lethal injections, or authorizing the use of alternatives to lethal injection. Abolitionist bills, with the exception of Arkansas’, have either failed to see action or have been voted down in committee. But whether you see the glass as half-empty or half-full, it’s hard to deny that the glass has gained water.
The latest plot twist in the will-they-or-won’t-they drama surrounding the Affordable Care Act (ACA) concerns the four plaintiffs at the heart of the case currently before the Supreme Court, and raises the question of whether they’ve been dragged into a fight that isn’t really theirs. Thanks to some crackerjack reporting from Stephanie Mencimer in Mother Jones and Louise Radnofsky and Brent Kendall in The Wall Street Journal, we’ve learned that the plaintiffs’ connection to Obamacare is more hypothesized than real. From Mencimer’s account:
Three of the four plaintiffs are nearly eligible for Medicare, meaning their objections to Obamacare will soon be moot. Two of them appear to qualify for hardship exemptions—that is, they are not forced to acquire insurance or pay fines because even with a subsidy insurance would eat up too much of their incomes—so it’s unclear how Obamacare had burdened them. These two plaintiffs seemed driven by their political opposition to President Obama; one has called him the “anti-Christ” and said he won election by getting “his Muslim people to vote for him.” Yet most curious of all, one of the plaintiffs did not recall exactly how she’d been recruited for the case and seemed unaware of the possible consequences if she wins. Told that millions could lose their health coverage if the Supreme Court rules in her favor, she said that she didn’t want this to happen.
The potential problem, from the standpoint of the law’s detractors, is that the legal doctrine of standing limits eligibility to file suit to actors who can show that they have suffered a particularized injury as a result of the challenged policy, and that a judicial remedy exists that can redress the injury. Merely being a concerned citizen who holds strong objections to a law will not suffice to provide access to the federal courts. And plaintiffs bear the burden of establishing standing, which means that even though the Obama administration inexplicably did not raise the issue in its brief, it might still be able to prevail because of it.
Does the consideration of standing transform the battle over the ACA’s legality by offering an escape hatch for justices who find the petitioners’ position questionable yet are hostile to the ACA? The problem with this hypothesis is that the justices who voted to grant review in King v. Burwell already had an opportunity to pass on Obamacare 2.0, but instead they jumped on the opportunity to hear the case. At the time they granted review, the D.C. Circuit Court of Appeals had already agreed to vacate its panel’s ruling in a parallel ACA case and to hear the case en banc, which meant that there was no intercircuit conflict of the type that gives the Supreme Court a more compelling reason to grant review. The justices who voted to review the 4th Circuit case (King) could have waited for the D.C. Circuit’s ruling, and had the D.C. Circuit followed the lead of its panel and struck down the subsidies for insurance purchasers using the federal exchange, the Supreme Court would have had its intercircuit conflict. The fact that at least four justices—the lack of transparency concerning certiorari means we won’t know for decades which justices voted for review—chose not to wait indicates an eagerness to decide this case that has caused no shortage of worry for the ACA’s defenders.
On the other hand, given the 5-4 line-up in the original litigation on the constitutionality of the law’s individual mandate, it is unlikely that more than five justices have agreed to review King. The justices who voted to grant certiorari might be confident that they have the fifth vote lined up, but as was the case in the earlier Obamacare litigation, their confidence might be misbegotten. All it would take to avoid deciding the contentious statutory issue is for Anthony Kennedy or John Roberts to find the escape hatch appealing. And if one or both did, it’s hard to imagine that the liberal justices wouldn’t follow suit.
There is ample precedent for using standing to duck politically vexing questions; one notable example came with the Court’s dismissal in 2003 of an Establishment Clause challenge to the inclusion of “under God” in the Pledge of Allegiance. And using standing would not preclude future challenges, as opponents of the ACA could refile with new plaintiffs who would be able to establish standing more credibly. Conservative justices might feel more comfortable tossing King if they know that they aren’t closing the door to claims relying on the substantive issue at hand in King.
Should defenders of the Affordable Care Act rejoice if standing proves decisive here? Even if all four petitioners are deemed to lack standing–and it’s plausible that only some, but not, petitioners will meet that fate–opponents of the Act could refile with plaintiffs who not only have standing, as noted above, but could present themselves as more publicly compelling figures whose challenge might be viewed more sympathetically. And they might believe that by the time a new case reached the Supreme Court, the composition of that body might change so as to become more inviting to the statutory challenge to Obamacare. But depending on the 2016 election results, the Court could just as easily become more hostile to such challenges. And more delay means more people benefit from the ACA, which raises the political cost of repealing the subsidies. Once the law becomes more firmly entrenched, legal challenges rooted in questionable methods of statutory interpretation will seem increasingly quixotic. So supporters should be happy to see this case disappear, irrespective of why it disappears.
Death penalty opponents have long been accustomed to taking their legal gains small and discrete, given the Supreme Court’s lack of interest in reconsidering its stance on the legality of capital punishment writ large. Over the past 12 years, abolitionists have had no small shortage of such gains, including bans on executing mentally disabled defendants, juvenile defendants, and those convicted of offenses other than murder. Their success concerning who may be executed and what they may be executed for, however, has not extended to questions of how they may be executed.
On Friday, however, the Supreme Court signaled a potential willingness to scrutinize execution methods more closely, in the wake of highly publicized lethal injections gone horribly amiss. Under its current standard, established in 2008 in Baze v. Rees, an execution method may be held to violate the Eighth Amendment only if it presents a “clear risk” of “severe pain” relative to what an alternative protocol might inflict. The existence of a less painful alternative, in and of itself, would not constitutionally compel the state to abandon its current methods. In reconsidering this precedent, the Court is also addressing two related questions: (1) whether three-drug execution protocols are unconstitutional if the sedative fails to do its job sufficiently, thus exposing the individual to significant pain from the other two drugs; and (2) whether a death-row inmate’s challenge to an execution proposal requires him or her to demonstrate the existence of a superior alternative.
The decision to grant review in Glossip v. Gross should not be read as a sign that Justice Anthony Kennedy, the Roberts Court’s quintessential swing vote, has changed his mind on the issue. Only four votes are needed to grant review, but five are needed to grant a stay of execution. The result is a curious state of affairs in which a death-row inmate could win his case, but have the victory come too late to save his life. To date, the Court has refused to stay the three scheduled Oklahoma executions at issue in Glossip, thereby suggesting that the fifth vote for overturning the Baze precedent has not yet emerged. (On Monday, Oklahoma did apply to the Court for a stay of execution limited to the three inmates involved in the case, but their application proposed that the Court lift the stay if the state can procure the drugs needed for an alternative protocol.)
What’s interesting to me is the strategic calculus of the four justices voting for the stay, whom we can presume were also the four who voted to grant review. Perhaps they feel confident that after oral argument, a fifth vote will emerge to constrain states when they carry out executions. (Indeed, one of the rationales for the Court’s adoption of the “rule of four” is that it leaves open the possibility that oral argument and intra-Court deliberation might change minds. At the very least, the rule might discourage outside observers from viewing the vote to grant review as equivalent to a vote on the merits.)
Such optimism, however, seems misguided in light of the absence of a fifth vote to grant a stay; any justice seriously entertaining a vote against death-penalty states presumably would want to prevent said states from executing death-row inmates while their claims are still pending. To be sure, Oklahoma’s request for a stay is predicated on that stay being lifted once the state has identified an alternative protocol. In the state’s view, discontinuation of the sedative at issue, midazolam, would remove any barriers to executing the inmates, whose guilt is not being contested. But any alternative protocol would have to undergo the same level of scrutiny the Court is currently devoting to midazolam, or the possibility would still exist that an inmate could be executed using a method that violates the Eighth Amendment. If the liberal wing is hoping that Justice Kennedy would join it, after he had passed on the opportunity to delay the executions for five months while the case was pending, there is a strong possibility that its hopes are misguided.
But what if the liberal justices, rather than acting misguidedly, are taking a longer view of which strategic actions will serve their interests best? Perhaps those favoring review are fully aware that they could lose on the merits, yet still benefit from the Court’s airing the various issues surrounding lethal injection as currently administered. Half a dozen years ago, the Court that decided Baze treated as speculative the prospect that lethal injections might not go according to design. Hearing the Oklahoma cases returns to center stage not just Clayton Lockett’s agonizing botched execution, but all lethal injections that looked like his. Death-penalty states have worked very hard to safeguard their practices from public scrutiny; as such, a victory at the Supreme Court will feel Pyrrhic to them if it is accompanied by a highly publicized accounting of how states do death. Conversely, for the liberal justices Glossip v. Gross becomes a no-lose proposition: either the Court constrains death-penalty states, or the continuing negative publicity leads to pressure on state legislatures to change their policies, and on their drug suppliers to refrain from participating in lethal injection. Come April, when the Court holds oral argument, we should have a better sense of whether the liberal bloc’s short-term tactics paid off. But if the Court sides with Oklahoma, we’ll have to wait much longer to determine whether losing the battle will help them win the war.
UPDATE (1/28/15, 5:15 pm): The Supreme Court has ordered Oklahoma to postpone lethal injections using midazolam until the Court has ruled on the legal challenges surrounding its use. The Court, however, did not say whether the state could conduct executions using some other protocol.