Supreme Court Update: Glossip v. Gross (15-7955) and Order List

July 2, 2015 Supreme Court Update

Greetings, Court Fans!

We're back with our final Update of OT14, covering Glossip v. Gross (15-7955), a doubly divisive death-penalty case, and providing a roundup of the Court's orders over the last few weeks. (Did you think we'd forgotten about cert grants in the midst of the end-of-term excitement? You were right.)

The deep divisions in the Court on the death penalty were on full display in Glossip, a 5-4 decision upholding the constitutionality of Oklahoma's lethal-injection protocol. The Justices' opinions fell along two fault lines. First, Justice Alito, writing for the conservatives (including Kennedy), rejected the petitioners' claim that the first drug in Oklahoma's three-drug cocktail failed to prevent intolerable pain caused by the other two drugs and therefore violated the Eighth Amendment. Justice Sotomayor wrote the principal dissent for the Left. She challenged both the majority's view of the record evidence on this issue and the legal burden the majority imposed on prisoners making method-of-execution claims. The second fault line was triggered by Justice Breyer's lengthy separate dissent, joined by Ginsburg, which laid out the arguments for ruling that the death penalty itself is unconstitutional and called for full briefing on the issue. Scalia and Thomas each wrote concurring opinions sharply attacking Breyer's reasoning and offering a full-throated defense of the constitutionality of the death penalty.

The genesis of this case is tied up with the unavailability of certain drugs for executions—partly because of the success of capital-punishment opponents in putting pressure on drug-makers. Oklahoma had earlier used a three-drug lethal injection methodology that had been upheld as constitutional. That protocol began with a barbiturate (initially sodium thiopental and later pentobarbital) to render the inmate unconscious and insensate to pain, then a paralytic agent to stop respiration, and finally potassium chloride to stop the heart. But when pharmaceutical producers stopped providing the barbiturates to the states for use in executions, Oklahoma turned instead to midazolam, a sedative, as the first of the three drugs in the protocol. In the wake of a botched execution involving midazolam, four death row inmates filed a §1983 suit contending that midazolam is ineffective to prevent intolerable pain caused by the second and third drugs and that the process therefore constituted cruel and unusual punishment. The district court denied the inmates a preliminary injunction, finding that they had not demonstrated a likelihood of success on their Eighth Amendment claim, and the 10th Circuit upheld the ruling. The Court granted cert in late January, but only after rejecting the stay application of one of the inmates, who was promptly executed under the challenged protocol. (Remember, it only takes four votes to grant cert, but five to grant a stay.)

That 5-4 lineup was featured again the Court's decision, which affirmed the lower courts. Writing for the majority, Justice Alito noted that the Supreme Court has "never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment." Relying on Baze v. Rees (2008), which upheld the earlier version of the three-drug cocktail, Alito set out the rigorous standard that the inmates had to meet: An inmate must demonstrate that the state's protocol "creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives." The petitioners failed to meet that burden here. Alito concluded that the district court's finding that sodium thiopental and pentobarbital were unavailable to Oklahoma was not clearly erroneous, and that petitioners did not identify any other "known and available" drug that would be better. Justice Alito's emphasis on the unavailability of superior alternative drugs echoed a concern he had expressed at oral argument—that anti-death penalty advocates had persuaded pharmaceutical companies not to provide the more effective barbiturates to states for executions, thereby enabling inmates to challenge as ineffective the drug that remained available.

For good measure, the majority also held that the district court did not clearly err in finding that midazolam was "highly likely to render a person unable to feel pain during an execution." Justice Alito warned that federal courts lack the expertise to "embroil [themselves] in ongoing scientific controversies beyond their expertise." He rejected the arguments by petitioners (echoed in Justice Sotomayor's dissent) that midazolam is not effective enough to maintain a state of insensitivity to pain from the other drugs and that it has a "ceiling effect," which precludes an increase in effectiveness as the dosage increases. Alito concluded that the record evidence was more than sufficient to show that the district court's rejection of these arguments was not clearly erroneous. Alito summed up the majority's bottom line as follows: Because capital punishment is constitutional, it "necessarily follows that there must be a [constitutional] means of carrying it out."

Justice Sotomayor's dissent focused on the absence of record evidence to support the district court's findings that a 500 mg dose of midazolam is effective at maintaining "unconsciousness in the face of agonizing stimuli." Committing clear error, the district court based those findings almost entirely on the testimony of the state's pharmaceutical expert, but that testimony was supported by no scientific scholarship and was directly refuted by scientific studies relied upon by the inmates' experts. Sotomayor noted that the FDA has not even approved midazolam as a sole drug to maintain unconsciousness for surgery. Sotomayor took still greater umbrage at the majority's "novel requirement" that the inmates must identify an "available alternative by which the State may kill them." First, she challenged Justice Alito's reliance on Baze as establishing this standard, because that part of the three-Justice plurality opinion did not represent the views of a majority of the Court. Moreover, the particular sentence in Baze discussing "known and available alternatives" was simply a response to a specific argument made by the inmates in that case—that even a low risk of intolerable pain is unconstitutional if it could be eliminated by adopting an alternative procedure. Baze did not create a new standard for all cases. If that were so, executing an inmate with a drug that poses a 99% risk of causing excruciating and intolerable pain would nonetheless be constitutional if the inmate could not identify a superior alternative. In this regard, she also squarely rejected the majority's view that there must be a constitutional means of executing people if capital punishment is constitutional. If a state wishes to conduct an execution, it is obliged to use a method that is not cruel and unusual. "Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death."

Justice Breyer bypassed the whole debate over the method of execution, and penned a lengthy dissent raising the question whether the time has come to decide that the death penalty itself violates the Eighth Amendment. Though he called for full briefing on the issue in a future case, Breyer offered several bases for concluding that the death penalty is likely unconstitutional. First, it is unreliable. There have been numerous cases in which it later became clear that innocent people were executed, and an increasing number of cases in which prisoners were sentenced to death but later exonerated. Second, the death penalty has been imposed in an arbitrary manner. Breyer relied on studies that show the comparative egregiousness of the murderer's crime does not account for whether the death penalty is applied. Other, inappropriate factors account for the variation, including disparate resources for defense counsel, racial composition of the county in which the case is tried, and racial and gender bias. Breyer observed that, over the course of 20 years reviewing death-penalty cases on the Court, he had seen "discrepancies for which [he] can find no rational explanations." Third, the excessively long time that inmates spend on death row undermines the constitutionality of the death penalty because of the "dehumanizing conditions of confinement" and because delay "undermines the death penalty's penological rationale." He noted that the long delays and the rarity of executions undercut any deterrent effect from having a system of capital punishment in place. Finally, Breyer pointed to the long-term decline in the use of the death penalty in the states as evidence that the punishment is not only cruel but increasingly "unusual," as well.

Breyer's separate dissent provoked the ire Justice Scalia, who wrote a separate concurring opinion to fire back. He described Breyer's dissent as "a white paper devoid of any meaningful argument." He emphasized that the death penalty must be constitutional, as it is expressly contemplated in the constitution itself (in the Fifth Amendment, which requires a grand jury indictment for a "capital" crime and provides that no one shall be "deprived of life" without due process of law). Justice Scalia's concurrence takes issue with each of the bases on which Justice Breyer questioned the constitutionality of the death penalty. As to reliability, he notes that it is convictions and not punishments that are unreliable, and that an innocent defendant has a much greater likelihood of being exonerated through the appeal process when a death sentence is involved. In response to the claim that the death penalty leads to arbitrary results, he notes that variations in death penalty judgments are the "inevitable consequence of the jury trial, that cornerstone of Anglo-American judicial procedure." As to Breyer's doubt that the death penalty has a significant deterrent effect, Scalia points out that most judges live "a world apart" from typical Americans, who face a real threat of violence in their daily lives. He characterizes Breyer's views of deterrence as reflecting a "let-them-eat-cake obliviousness to the needs of others" and concludes: "Let the People decide how much incremental deterrence is appropriate."

Justice Thomas also weighed in, focusing on Breyer's argument that, judged by the egregiousness of the crimes committed, the death penalty is arbitrarily imposed. He attacked the validity of the studies on which Breyer relied as misguided attempts to "quantify[] moral depravity." The variation in outcomes in capital cases is based principally on the locality of the crime, because the outcomes are properly the product of decision making by local juries. Juries, in Thomas's view, "are better situated to make the moral judgment between life and death than are the products of contemporary American law schools." If the concern is disparate outcomes, the "best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means."

So, while Glossip was technically limited to one drug in one state's three-drug cocktail, the broader implications of the decision on the future of death-penalty litigation are significant: Unless and until the Court takes up Breyer's call to reexamine the continued constitutionality of the death penalty, itself, challengers will have to prove not only that a particular execution method is cruel and unusual, but also that there is no readily available less cruel alternative.

There you have it: 69 up and 69 down. It's been a pleasure providing you with the Cliffs Notes once again this term. Thanks to our colleagues in the Appellate Group—Jonathan Freiman, Jeff Babbin, Aaron Bayer, and Jenny Chou—for chipping in during the end-of-term rush, which happened to coincide with a multi-week trial for Kim. (Back to work, Kim!) And a special thanks to our frequent ghostwriters, Dave Roth and brand-new mom Ivana Greco. Congratulations, Ivana! (Back to work, Roth.)

Before we leave you for the summer, let's quickly catch up on what lies ahead for OT15. The Court granted cert in eleven cases over the last three weeks, including a few biggies:

Fisher v. University of Texas (14-981) marks the second trip to One First Street for Abigail Fisher, the white Texas high-schooler (now a white alumna of LSU) who challenged UT's use of race in its admissions criteria. In 2012, the Court punted on Fisher's challenge and sent the case back to the Fifth Circuit to apply the proper standard of strict scrutiny. Applying strict scrutiny on remand, the circuit court nevertheless upheld UT's admissions process. The case is now back before the Supremes, squarely asking whether a public university's use of race as one of several diversity considerations in a holistic analysis of applicants violates the Equal Protection Clause.

Friedrichs v. CA Teacher Ass'n (14-915), squarely presents a question left unanswered last term in Harris v. Quinn (2014): whether the Court should overrule the forty-year-old precedent of Abood v. Detroit Bd. of Education (1977) and hold that public-sector "agency shop" arrangements violate the First Amendment. In Harris, Justice Alito all but spelled the end of Abood but limited the Court's holding to striking down agency shop arrangements (under which employees have to pay dues to a union even if they decline membership) for so-called "partial public employees." Friedrichs involves full-on public employees, and there's a very good chance that their case will provide the vehicle for overruling Abood, which could have devastating effects for public-employee unionism. The case does, however, present a narrower question, asking alternatively whether it violates the First Amendment to require public employees to affirmatively object to subsidizing union speech, rather than requiring that they affirmatively consent to subsidizing such speech.

Harris v. Arizona Independent Redistricting Committee (14-232) involves the same independent redistricting committee that (barely) earned the Court's imprimatur on Monday in AZ State Legislature v. AZ Independent Redistricting Committee (2015), though the petitioners in this case argue that it's not so independent after all. Their petition asks: (1) Does the desire to gain partisan advantage for one political party justify intentionally creating over-populated legislative districts that result in tens of thousands of individual voters being denied Equal Protection because their individual votes are devalued, violating the one-person, one-vote principle? (2) In the wake of Shelby v. Holder (2013), does the desire to obtain favorable preclearance review by the Justice Department permit the creation of legislative districts that deviate from the one-person, one-vote principle? and (3) Was the Arizona redistricting commission correct to disregard the majority-minority rule and rely on race and political party affiliation to create Hispanic "influence" districts?

The other new cases set for the Court's docket next term are:

Menominee Indian Tribe of Wisconsin v. U.S. (14-510), which asks whether the D.C. Circuit misapplied Holland v. Florida (2010) when it ruled that the Tribe did not face an "extraordinary circumstance" warranting equitable tolling of the statute of limitations for filing of Indian Self-Determination Act claims under the Contract Disputes Act;

Merrill Lynch v. Manning (14-1132), which asks whether § 27 of the Securities Exchange Act of 1934 provides federal jurisdiction over state-law claims seeking to establish liability based on violations of the Act or its regulations or seeking to enforce duties created by the Act or its regulations;

California Franchise Tax Board v. Hyatt (14-1175), which asks (1) whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys; and (2) whether Nevada v. Hall (1979), which permits a sovereign State to be haled into the courts of another State without its consent, should be overruled;

Gobeille v. Liberty Mutual Ins. Co. (14-181), which asks whether the Second Circuit erred in holding that ERISA preempts Vermont's health-care database law as applied to the third-party administrator for a self-funded ERISA plan;

Musacchio v. United States (14-1095), which asks (1) whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and the indictment; and (2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal;

Torres v. Lynch (14-1096), which asks whether the Board of Immigration Appeals reasonably concluded that third-degree attempted arson under New York law is an aggravated felony for purposes of removal under the Immigration and Nationality Act;

Dollar General Corp. v. MS Band of Choctaw (13-496), which asks whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers;

and Bruce v. Samuels (14-844), which asks whether § 1915(b)(2) of the Prison Litigation Reform Act caps the monthly exaction of filing fees for prisoners filing in forma pauperis at 20% of the prisoner's monthly income regardless of the number of cases or appeals for which they owe fees.

That brings the total number of cases set for next term to 34 (so far). It'll be hard to top the excitement OT14, but we're looking forward to whatever The Nine have in store for us in the Fall. Til then!

Kim and Tadhg