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A “view” from the Courtroom: Letting the air out of the Term

It’s unseasonably mild on this last Monday of June in Washington. That will make it easier on those who partake in what has come to be known as “the running of the interns.”

These are the young assistants, many clad in athletic shoes, who rush written opinions from the Public Information Office out to the broadcast and cable TV correspondents on the sidewalk in front of the Court building. They first became a thing a few years ago, and have re-emerged as a meme this month, with mentions on the news and in The Washington Post.

They are on our mind as we take a seat in the Courtroom this morning because of something that Chief Justice John G. Roberts, Jr., wrote earlier in the Term. In his year-end report on the judiciary, released on December 31, Roberts discussed how the current Court was slowly and deliberately embracing new technology that will see the introduction of a full-blown electronic filing system by as soon as next year!
To embellish his point, the Chief Justice discussed an earlier technology for speeding the Court’s opinions into the hands of working journalists. When the new Court building opened in 1935, it included a system of pneumatic tubes and compressed air. Roberts related that under this new protocol, “immediately before a Justice announced a decision in the Courtroom, the Clerk of the Court directed messengers to hand copies to a small group of journalists stationed in front of the bench. The journalists then dispatched the copies through the pneumatic tubes to their colleagues in the press booths one floor below, saving the messengers dozens of steps and precious minutes in communicating the news of Court actions.”

This system survived until 1971, Roberts noted. This blog’s own Lyle Denniston was one of those reporters who used to sit in front of the Justices.

Today, the last formal day of the Term, there will be decisions in three cases, but none will be dispatched anywhere in a pneumatic tube.

Maureen Scalia, the wife of Justice Antonin Scalia, and Joanna Breyer, the wife of Justice Stephen G. Breyer, take seats in the VIP section. Just before the start of the session, retired Justice John Paul Stevens steps into the Courtroom, as he had on Friday.

When the Court takes the bench at ten o’clock, Justice Breyer is carrying papers, and Justice Ruth Bader Ginsburg is wearing the jabot she favors for when she announces a majority opinion. She will indeed have one today, but not right away.

Roberts announces that Justice Samuel A. Alito, Jr., has the Court’s opinion in Glossip v. Gross, about death-penalty procedures in Oklahoma.

This case was the subject of heated rhetoric and bitterness when it was heard on the last day of oral arguments of the Term, on April 29.

“The death penalty presents an emotional and controversial public-policy issue,” Alito says, but he adds that it was an accepted punishment at the time of the adoption of the Constitution and the Bill of Rights.

He notes how the states have generally moved from hanging, to electrocution, to lethal gas, and then to lethal injection to carry out capital punishment. This challenge, brought by four prisoners on death row in Oklahoma, challenge the state’s use of the drug midazolam as part of its three-drug protocol because they contend it fails to render a person “insensate” to pain.

Alito provides some details of the “exceptionally heinous murders” for which the four men were convicted. He does not mention in court that one of the four was executed by Oklahoma on January 15, about a week before the Court granted the appeals of the other three.

He explains that the Court’s 2008 decision in Baze v. Rees made clear that prisoners may not successfully challenge a method of execution unless they establish that the method creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.

Because the prisoners in this case could not show that, “this dooms their claim,” Alito says.

He is soon revealing some of the dissenters’ thinking so that he can respond from the bench. Justices Breyer and Ginsburg are today announcing that they find capital punishment unconstitutional “no matter” which method is used, Alito says.

“Readers can judge for themselves how much distance there is between the principal dissent’s argument [by Justice Sonia Sotomayor] against requiring prisoners to identify an alternative and the view, now announced by Justices Breyer and Ginsburg, that the death penalty is categorically unconstitutional,” Alito says.

He explains the second reason for affirming the ruling below for the state. “The District Court did not commit clear error when it found that midazolam is highly likely to render a person unable to feel pain during an execution,” he says.

Yes, Oklahoma’s problematic execution of Clayton Lockett last year – in which the inmate appeared to writhe in pain and said “the drugs aren’t working”—was “disturbing,” Alito says. But a state inquiry revealed that was mainly due to a flaw in the IV line, he says. The state has since modified its protocol and executed a death-row inmate without problem, he adds.

Alito wraps up with the line-up: Roberts, Scalia, and Justices Anthony M. Kennedy and Clarence Thomas have joined his opinion – with some concurrences, as we’ll soon find out. Justice Sotomayor’s principal dissent is joined by Ginsburg, Breyer, and Justice Elena Kagan. And as we know, Breyer and Ginsburg have their own dissent.

Justice Sotomayor says the majority fails to recognize as a factual matter that some of the drugs used by Oklahoma “are intended to para­lyze the inmate and stop his heart. But they do so in a
torturous manner, causing burning, searing pain,” she says.

The Court’s errors leave prisoners “exposed to what may well be the chemical equiva­lent of being burned at the stake.”

When Sotomayor finishes, there is a pause. We’re not yet done with Glossip v. Gross.

Justice Breyer explains that he and Justice Ginsburg join Sotomayor’s dissent, but “we have also filed a separate dissent of our own.”

“We believe that the time has come for the Court to again consider a more basic question: Whether the death penalty itself is constitutional,” he says.

Since the Court reinstated the death penalty in 1976 in Gregg v. Georgia (after the four-year timeout based on Furman v. Georgia), he says, “forty years of experience with those procedures and protection shows that they do not work. Thus we believe it highly likely that the death penalty now violates the Constitution.”

He cites problems with reliability, arbitrariness, delays, and the abandonment of capital punishment in many jurisdictions.

On the subject of delays, he notes that “the average execution last year occurred almost 18 years after the individual was sentenced to death.” Such delays can themselves be cruel, and they undermine the principal penological rationales for the death penalty.

“In sum, administration of the death penalty can take place swiftly but unreliably or it can take place with long delays but without significant justifying purpose,” Breyer says. “We cannot have it both ways. And, given that fact, it is difficult to see how the death penalty be reconciled with the Constitution’s basic demands.”

Justice Alito mostly looks down at his place at the bench during these dissents. When Breyer finishes, there is another pause. The Chief Justice looks to his right, to Justice Scalia.

“I have filed an opinion responding to Justice Breyer’s proposal that we abolish the death penalty,” he says.

It is most unusual, though not unprecedented, for a concurring Justice to read from his or her opinion. Justice Scalia did it himself last Term in National Labor Relations Board v. Noel Canning. But today’s statement is more in the vein of a direct rebuttal to a dissent.

“Unlike opposite-sex marriage, the death penalty is approved by the Constitution,” says Scalia, who appears to be reading from papers at first but is soon speaking off the cuff.

He finds it “wryly amusing” that Justice Breyer is concerned about the average eighteen-year delay between death sentences and execution, Scalia says, since such a delay “is the product of the unending impediments the Court has imposed” on capital punishment.

“Maybe we should celebrate that these two justices are trying to kill [the death penalty] outright rather than peck it to death,” Scalia concludes.

Anyone else planning to chime in? Apparently not, so we are ready to move on to another case.

Justice Ginsburg is up next with Arizona State Legislature v. Arizona Independent Redistricting Commission, and she makes relatively quick work of upholding the state’s use of a commission to draw congressional districts.

The subject matter is obviously less intense than that of Glossip. Justice Kagan yawns a couple of times as Ginsburg speaks, and Roberts passes a note to Scalia, who responds directly to him with a whisper.

There are no oral dissents or concurrences to the Arizona case, and at 10:35, Roberts announces that “Justice Scalia has our last opinion of this term,” in Michigan v. Environmental Protection Agency.

Today’s outcome of assignments is falling in line with predictions of which Justice had yet to write from various sittings.

The fact that Scalia has the opinion in the EPA case is not great news for the agency, nor a happy birthday present for U.S. Solicitor General Donald B. Verrilli, Jr., who argued the EPA’s case.

Scalia is pretty dry and straightforward in concluding that “it was unreasonable for the agency to read the [Clean Air Act] to mean that cost is irrelevant to the decision to regulate power plants. “

This is one Term in which the biggest decision definitely did not come out last.

The Chief Justice has the customary final housekeeping to administer.

“I am authorized to announce that the Court has acted upon all cases submitted to the Court for decision this Term.,” he says. “Disposition of items scheduled for conference today will be reflected on an Order List that will be released at 9:30 tomorrow morning.”

“The Court will be in recess from today until the first Monday in October 2015, at which time  the October 2014 Term of the Court will be adjourned and the October 2015 Term of the Court will begin, as provided by law.”

Roberts thanks Court employees for their “outstanding work and dedication.” He thanks the members of the Court’s Bar “for their professionalism and cooperation.”

Then, as is customary, he recognizes Court employees who are retiring. Today, it is Edward L. Turner, who retired on January 3 after thirty-two years at the Court, serving in the office of the counselor to the Chief Justice for several years, and before that in the Public Information Office, where he was (and is) well-liked by the Court’s press corps, and in the Clerk’s office.

The Chief also recognizes Crystal Martin, who is retiring in a matter of days as secretary to Justice Scalia, after forty-two years of government service, thirty-one of them at the Court.

Then, Marshal Pamela Talkin bangs her gavel and announces that the Court is “adjourned until Monday, October 5, at 10 o’clock.” The Justices disappear behind their curtain after another extraordinary Term.

Recommended Citation: Mark Walsh, A “view” from the Courtroom: Letting the air out of the Term, SCOTUSblog (Jun. 29, 2015, 3:44 PM),