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Lethal Injection

Death Penalty Case Inflames Supreme Court Passions

SCOTUS Backs Use of Lethal Injection Drug 1:06

A case centering on the use of one lethal-injection drug by a handful of states inflamed extraordinary passions at the U.S. Supreme Court.

Four justices spoke out in the courtroom on Glossip v. Gross on Monday, a rare flurry of discussion, according to longtime court watchers. The ruling produced outrage, insults and a call to put the entire issue of capital punishment on the table.

Justice Antonin Scalia began his concurring opinion with: "Welcome to Groundhog Day," compared the liberal wing of the court to Marie Antoinette and declared one justice's reasoning "gobbledy-gook."

Related: U.S. Supreme Court Upholds Controversial Lethal Injection

The 5-4 opinion was announced by Justice Samuel Alito. The majority found that Oklahoma can continue to use the controversial chemical midazolam as part of its three-drug protocol, dismissing arguments that it does not protect prisoners from excruciating pain.

Two justices spoke in dissent, starting with Sonia Sotomayor, who recounted problematic executions involving midazolam and declared it "surreal" that prisoners challenging a lethal-injection protocol must offer an alternative means of execution.

"Under the Court's new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake," she wrote.

While Sotomayor tackled the question of midazolam, Justice Stephen Breyer penned a separate dissent that went much further and called for the court to re-examine whether the death penalty itself is constitutional.

Across 41 pages, he pointed to death-row exonerations, the uneven application of the death penalty, long delays before executions and the decline of capital punishment around the country as factors that violate the Eighth Amendment's protection against "cruel and unusual punishment."

He also questioned the practical effect of the death penalty, writing that it is "difficult to believe...that such a rare event significantly deters horrendous crimes."

Breyer's dissent brought its own response from Scalia, full of characteristically colorful turns of phrase.

"A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good," he wrote.

"Justice Breyer speculates that it does not 'seem likely' that the death penalty has a 'significant' deterrent effect," he wrote later. "But we federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door.

"We are not confronted with the threat of violence that is ever present in many Americans' everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem 'significant' reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate."

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Richard Dieter of the Death Penalty Information Center, which opposes capital punishment, said a broader review of the death penalty is not in the immediate future.

There is a case out of California, in which a federal judge declared the death penalty unconstitutional because of decades-long delays between sentencing and execution, that could eventually wind up before the high court.

But Dieter said the liberal justices would probably not vote to review a broader challenge unless they had "more clarity" on how the swing vote, Justice Anthony Kennedy, would decide.

Kennedy sided with the majority on the midazolam question, but Dieter optimistically speculated that he could be swayed if the issue went beyond "technicalities" to the "big picture."

"I don't think there is a clear set of votes to knock this out or uphold it," he said.