Anguish in the Supreme Court about the death penalty -- Part II

The main debate in Glossip v. Gross is about the constitutionality of using a protocol of three particular drugs to carry out executions by lethal injection. This debate - contained in the opinion of the Court for five justices by Justice Alito and the dissent for the other four by Justice Sotomayor, is also marked by signs of the justices' distress.

Justice Sotomayor sharply attacks the majority's position that an attack on one method of execution as unconstitutionally cruel cannot succeed unless the attackers show that "any risk of harm was substantial when compared to a known and available method of execution." (Majority opinion at 13.) (Oklahoma, the executing state here, contended that no better drugs were available - because the suppliers of such drugs were not prepared to permit their use in executions.) Justice Sotomayor argued that "under the Court's new rule, it would not matter whether the State intended to use midazolam [the particular drug that posed problems], or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake." (Sotomayor, J., dissenting, at 28.)

To this Justice Alito responds that "That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments." (Majority opinion at 29.) He is basically right that Sotomayor's point is wrong. Any of the self-evidently torturous methods of execution she refers to could easily be replaced with other methods that are substantially more humane than these. Doing so might require legislation, but with that step taken these other methods would be "available." Once that's established, it follows that under the majority's test demonstrably torturous methods could not avoid being held unconstitutional.

But Justice Alito's opinion has a striking feature of its own. The inmates' case was that midazolam, which was meant to cause unconsciousness, did not work well enough to maintain unconsciousness when the next two drugs, one for paralyzing the body and thus stopping respiration and the other for stopping the heart, were administered. The second and third drugs, the inmates argued, would cause such excruciating pain that they would jolt people back to consciousness. The result would be, as Justice Sotomayor describes the claim, that the inmates would be "exposed to what may well be the chemical equivalent of being burned at the stake." (Sotomayor, J., dissenting, at 2.) Agonizing things would be done to their bodies, and they would be awake to feel it.

For the Court, Justice Alito responds that the burden of proving this contention lay with the inmates. The lower courts found against the inmates on the facts, and the Supreme Court's role is confined to reviewing those factual rulings for "clear error." Sotomayor makes a good case that in fact there was clear error - perhaps most tellingly, doctors do not use midazolam by itself as an anesthetic for serious surgery, evidently because it cannot be relied upon to so the job of freeing the patient from pain -- but reasonable judges do disagree on this sort of question. (Sotomayor, J., dissenting at 18.)

What's most striking about Alito's opinion, instead, is what he does not say. He never spells out the inmates' claim of chemical torture, or even acknowledges the dissent's identification of this prospect as the crux of the case. Instead he refers repeatedly to the question of whether midazolam will render the inmate "insensate to pain" (the word "insensate" appears in the majority opinion 16 times) or insure unconsciousness despite the "'noxious stimuli'" from the other drugs (the latter language quoted from the trial court). Though he refers many times to the legal standard that requires showing a substantial risk of "severe" pain, he doesn't spell out the inmates' case. Once he refers to arguments concerning "serious" pain (majority opinion at 28), and once he quotes a dissent from another case referring to "a risk of dreadful pain" (id. at 22), but that's as far as he goes.

Why is Alito's language so discrete? Perhaps he felt that the inmates hadn't provided enough evidence to justify even alluding to the idea of chemical torture. Perhaps he regarded the claim as not only unproven but also too preposterous to bear mention. Perhaps he felt that using this language in and of itself gave a rhetorical advantage to the inmates. We do not know, but I think it is fair to take Alito's omission as itself reflecting how troubling he found the case. Where Sotomayor turned to overstatement, Alito chose understatement. Both seem disturbed by what they must address.

Anguish in the Supreme Court about the death penalty - Part I

Glossip v. Gross, the Supreme Court's latest encounter with the death penalty, confirms -- if any confirmation was needed -- how difficult an issue capital punishment is for the justices of the Court. The actual issue in the case was the constitutionality of a particular three-drug "protocol" used for execution by lethal injection. But the case also provoked several of the justices to a debate about the constitutionality of the death penalty itself, and I want to start with that.

Perhaps the most distressed of the justices is Scalia (whose separate opinion Justice Thomas joined). Scalia is so upset by the long dissent from Justice Breyer (with whom Justice Ginsburg concurred), in which Breyer suggested that the death penalty might in fact be unconstitutional in all applications, that he descends to insult. He declares that Breyer's opinion "is full of internal contradictions and (it must be said) gobbledy-gook." (Scalia, J., concurring, at 2.) While Scalia is known for epithets like this, this one is hard to defend: Breyer's opinion can certainly be criticized but it's a notably sober and thorough discussion.

Then, responding to Breyer's argument that the death penalty probably does not actually operate as a significant deterrent, Scalia argues that "[t]he 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" (id. at 5), those who are more exposed to danger than the members of the federal judiciary are. That's an assertion not only of elitism - a familiar criticism from Scalia - but of a malign indifference to the needs of others.

Then, in the next paragraph, Scalia addresses Breyer's argument that the death penalty may be unconstitutional because of the long delays between sentencing and actual execution. Scalia, not unreasonably, blames this delay on the Court's own complex death penalty jurisprudence, developed over past decades. Then he writes: "Indeed, for the past two decades, JUSTICE BREYER [the capitals aren't for special emphasis - they're a Supreme Court convention] has been the Drum Major in this parade." (Id. at 6.)

Scalia, in short, finds Breyer's dissent just unbearable - and his short dissent makes that clear in ways that aren't just sharp but quite personal.

The other justices don't write that way, but as I'll try to show in coming posts, many of them are distressed too.

When does statutory purpose matter to statutory meaning, and why?

Two Supreme Court statements about the role of a statute’s purpose in its interpretation:

From Baker Botts LLP v. Asarco LLC, a case decided on June 15, 2015 that finds that bankruptcy attorneys are not entitled to court-ordered attorneys’ fees to compensate them for the time they spent in litigating their right to attorneys’ fees for their work on the underlying bankruptcy itself, this observation by Justice Thomas for a majority of the Court:

Our job is to follow the text even if doing so will supposedly “undercut a basic objective of the statute….”

And from Texas Department of Housing and Community Affairs v. Inclusive Communities Project, the case decided June 25, 2015 that holds that the Fair Housing Act prohibits not only intentional discrimination but also other conduct, not necessarily meant to discriminate, that has discriminatory effects, this comment by Justice Kennedy, again for a majority of the Court (which I quoted in my earlier post about this case):

[A]ntidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose.

Why does statutory purpose matter in one case, and not in the other? The question is especially pointed because Justice Kennedy, the author of the Inclusive Communities decision, was also one of the justices concurring in Justice Thomas’ opinion in Baker Botts. Hasn’t he just endorsed two contradictory views of the importance of congressional purpose?

No. The crucial distinction (not the only one, but I’ll leave a more complete account for some other day) between the cases is the one Justice Kennedy himself points to in the Inclusive Communities passage: in this case he is explaining how “antidiscrimination laws must be construed.” This case tells us that Justice Kennedy, and the Court, will not read the words of a discrimination statute – a race discrimination statute in particular – without attention to what that statute means in our society, with its agonizing history of race discrimination. He, and the Court, are prepared to insist on the full rigor of an exclusive focus on the text when what’s at issue is merely the distribution of money between powerful private actors like Baker Botts and Asarco. But when the stakes, the constitutional stakes, are truly high, a majority of the Court will keep them in mind as it reads and interprets Congress’ words. And that is good news.

The Supreme Court's decision on housing discrimination

Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., decided on June 25, 2015, understandably received much less attention than the Supreme Court’s same-sex marriage decision the following day.  But Inclusive Communities is an important case nonetheless. (Disclosure: I assisted two New York Law School colleagues who, together with students, wrote an amicus brief broadly supporting the result the Court reached.)

The question the case addressed was whether the Fair Housing Act forbids both action that deliberately discriminates based on race, and also action that has a racially discriminatory effect. Deliberate discrimination in this context is called “disparate treatment”; action with racially discriminatory effects, but no proven discriminatory purpose, is described as having a “disparate impact.” As lawyers would put it, then, the question was whether the Fair Housing Act creates liability not only for “disparate treatment” but also for “disparate impact.”

It’s been settled since Griggs v. Duke Power Co., decided by the Supreme Court in 1971, that the following language of the Civil Rights Act of 1964 forbade both disparate treatment and disparate impact in employment discrimination cases:

            Section 703(a): It shall be an unlawful employer practice for        an employer …

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

That case is settled law. The Inclusive Communities case was about two sections of a different statute, the Fair Housing Act. The language of the two sections varies a bit, but the central words at issue can be seen here, in section 804(a), which makes it unlawful:

To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

The Supreme Court, by a 5 – 4 vote with Justice Kennedy writing the majority opinion, concluded that this language did encompass “disparate impact” as well as “disparate treatment” liability. Justice Kennedy writes (at 10) that Griggs and the plurality opinion in a subsequent case, Smith v. City of Jackson (2005), show “that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose.”

Here, the Court says, the language that “refers to the consequences of actions” is the phrase “otherwise make unavailable” (11). That’s a possible reading, but not, it seems to me, an inevitable one. “[O]therwise make unavailable” might be meant, as the Court is suggesting, to refer to acts of unintentional discrimination – in contrast to deliberate “refusals” or “denials.” But one might instead say that “otherwise make unavailable” refers to intentional acts that just aren’t the same intentional acts as “refusals” or “denials.” A “failure to respond” – unaccompanied by an express refusal or denial – might be an example.

If the phrase “otherwise make unavailable” is ambiguous, we might look a few words further to the phrase “because of race.” What does it mean to make housing unavailable “because of race”? The dissent’s answer is that “because of” means “by reason of” or “on account of,” and if there’s any ambiguity in those definitions, the dissent goes on to cite a lower court case spelling out that “the terms [after] the ‘because of’ clauses in the FHA supply the prohibited motivations for the intentional acts … that the Act makes unlawful.” (Dissenting opinion of Alito, J., at 5). Alito maintains that this is simply what “because of” means in our language – and to make his point he cites 14 articles using the phrase in the Washington Post on the day this case was argued. (Id. at 4 – 5 n.2.)

If he’s right that the words “because of” have this meaning, and can only have this meaning, then the FHA must be insisting on actions “motivated by” race – “disparate treatment” – and must not be making actions with merely “disparate impact” unlawful.

But it’s quite clear that “because of” in our law does not always mean “motivated by.” We know that from Griggs itself, where the same “because of” language appears – and did not stop the Supreme Court from finding that the Civil Rights Act of 1964 prohibited employment decisions that had “disparate impact” on particular racial groups.

Still, one might say that Griggs was mistakenly decided, and that its mistake should not be propagated – and this is exactly what Justice Thomas does say in his separate dissent. So it is important to ask whether “because of” could possibly mean, as a matter of English language usage, something other than “motivated by.”

The answer, it seems to me, is clearly yes. Suppose we ask, for instance, why black students as a group do less well than whites on the SAT exam. We might answer, “because of race.” What we would mean is not that the SAT deliberately discriminated against black people, but that the SAT’s negative impact on black students as compared to whites results from the many ways that race in our society contributes to social and educational disadvantage. “Because of race,” when used this way, is shorthand for “as a result of the interaction between the action taken and the social conditions that race has shaped.” And this is anything but fanciful: the massive, systematic socioeconomic disadvantages facing black people in the United States today can’t plausibly be explained as the sum of acts of conscious, purposeful racial discrimination, persistent as that kind of discrimination is; there’s much more to it than that, and that “much more” is encompassed in the words “because of race.”

There’s also more to the Inclusive Communities case, but it’s important to recognize, right away, that speakers of English do use the words “because of race” to refer to “disparate impact” and not only to “disparate treatment.” So the plain meaning of the statute’s words did not rule out the Court’s interpretation.

The same-sex marriage case and the role of the Supreme Court in a democracy

Justice Kennedy’s opinion for the Court is not, everyone would agree, a classic of doctrinal precision. But I’m not as disturbed about that as some people may be.

Brown v. Board of Education, after all, was not a classic of precise legal reasoning either. One leading scholar of the day felt the case for desegregation hadn’t been made; another wrote an article offering the opinion that he felt the Court should have written. It’s striking, even today, that the Brown Court managed to avoid ever saying what everyone knew, namely that the reason segregated schools existed in many states was that whites ran those states and viewed blacks as inferior. Nevertheless, Brown remains a key to modern American constitutional law.

Obergefell is squarely in the tradition of Brown. It discerns a constitutional right in words that had not been thought to contain this guarantee. Clearly the men (women could not vote at the time) who adopted the Fourteenth Amendment did not understand it to guarantee same-sex marriage; and it seems unlikely (at any rate the Brown court evidently thought it unlikely) that the adopters of that amendment understood it to forbid the segregation of schools either. In each case, the Court concluded that it could articulate the meaning of American values in ways that many or most Americans, at least in referenda and legislative votes, had not yet done.

Today’s conservative justices believe themselves opposed to the courts’ playing this role as the conscience of the country. Whether this is self-delusion on their part is an interesting question, but not one I want to take on today. (Incidentally, an earlier generation of conservatives, the ones who wrote decisions early in the twentieth century upholding the “liberty of contract” against such outrages as laws regulating the maximum number of hours in a workday, had no such hesitations.) But how can this current reluctance be squared with Brown? Perhaps the easiest way is simply to accept Brown as already decided, and uphold its result while “forgetting” the jurisprudential approach that led to that result. But Obergefell is a big problem for this strategy, because it just happened. There is now simply no way to deny that the Court does, even today, play this role.

It’s of course still possible to deny that the Court should do this, in particular on the ground that when nine justices, from elite backgrounds, shift the meaning of the constitution they are depriving the people of the country of their right of democratic self-governance. There are a lot of ways to respond to this charge, but perhaps the strongest is this point, articulated many years ago in a book review by Jerry Lynch, then a young faculty member at Columbia and now a judge of the U.S. Court of Appeals for the Second Circuit: this supposedly undemocratic institution is in fact an integral part of our particular democracy.

Or to put the point as Justice Kennedy does: 

[C]hanged understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process. (Obergefell, majority opinion at 7.)

The Supreme Court in Obergefell spoke to the deep values of the American people. To some extent, it spoke for the many, many people who have rapidly come to approve of same-sex marriage. To some extent, it spoke to others who had not yet reached the same conclusion. To some extent, it constrained still others who may never agree. All of this was true in Brown as well.

It’s certainly possible for the Supreme Court to overplay this hand. I doubt that it did so here; the Court’s decision instead feels to me like part of a broad and unstoppable wave of change and justice. But in any case, we live in a democracy in which some of the fundamental decisions, decisions that determine the reach of our constitutional liberties, are made by nine unelected people. We just do.