Glossip v. Gross: Justice Breyer Makes his Case against the Death Penalty

The Supreme Court’s 5-4  decision in Glossip v. Gross, upholding Oklahoma’s death penalty methodology, was not unexpected.  Justice Alito wrote the majority opinion, holding that the inmates failed to establish a likelihood of success in their claim that the particular combination of drugs used in Oklahoma’s executions violated their 8th amendment rights.

However, the case yielded two dissenting opinions: one by Justice Sotomayor and a second, powerful summary of the larger case against the death penalty, by Justice Breyer, joined by Justice Ginsburg. 

As both the majority and dissenters note, it was European opposition to the death penalty that created the occasion for this case in the first place — many manufacturers did not want their drugs used in executions, so Oklahoma had to scramble for alternative protocols.  Justice Breyer, however, goes further to bring the international perspective on the death penalty to bear on the case.  Long a proponent of looking abroad for inspiration and insight, Justice Breyer adds a number of foreign and international law cases to the domestic support that he musters for his assertion that prolonged death row delays are cruel and unusual.  Further, he notes the UN position in opposition to the death penalty, arguing that U.S. isolation in this regard should encourage reconsideration of the court’s approach to the issue.

The debate between Justice Breyer, armed with facts and figures like the former Senate staffer that he is, and Justice Scalia, who responds in a concurring opinion that Breyer’s assertions are so much “gobbedly-gook,” is an important one — and it’s a small measure of success that it’s now taking place with such vigor at the Supreme Court.

For more commentary on the Glossip opinion, see Michael Meltsner’s analysis, https://humanrights.lawprofessorsblogs.com/2015/06/the-lethal-injection-decision.html.  We will be posting more commentary soon.