Ed Lazarus previews the lethal injection death penalty case that the Supreme Court agreed to hear earlier this week. Among other points, Lazarus notes that "deciding what punishments are 'cruel' or 'unusual' [, and thus unconstitutional,] seems to cry out for some sort of subjective judgment - a search for standards and benchmarks that will never be completely value-neutral."
He also speculates about the way the various justices will approach the case. Here's how Lazarus breaks it down: "Boiled down to the brutal essentials, the right-wing [Justices Scalia and Thomas] will be accusing the left of being unprincipled softies, and the left-wing [Justices Stevens, Souter, Ginsburg, and Breyer] will be accusing the right of being handmaidens to a form of torture." What about Chief Justice Roberts and Justices Alito and Kennedy?
Caught somewhere in the crossfire (and no doubt firing shots of their own) will be the Court's three non-originalist conservatives, Chief Justice Roberts and Justices Anthony Kennedy and Samuel Alito. It is difficult to imagine either Roberts or Alito taking an expansive view of what the Eighth Amendment requires. Much more likely, they will view states as having very broad discretion over the implementation of the death penalty. And with jaundiced eyes, they will view the challenges to lethal injection as part of the abolitionist community's decades-long effort to stop executions by whatever means possible. That is not a cause they will be inclined to assist.
The wild card, as so often is the case with the Roberts Court, will be Justice Kennedy. On one hand, he may be the Court's most moralistic justice, the one most likely to read the Constitution through the prism of his own values or, perhaps more accurately, of the values to which he thinks the nation should aspire. This part of Kennedy is likely to find abhorrent the notion that, out of inertia, 37 states use a badly outmoded and potentially horrific method of execution. No good government should aspire to this low standard.
On the other hand, Kennedy has been generally very tough on the issue of the death penalty and very skeptical of death penalty abolitionist tactics. He will worry about the slippery slope of a decision forcing states to rethink their execution protocols. In particular, he will want to avoid any suggestion that states must constantly upgrade their methods to fit advances in science, and will not want to join a decision that predictably opens the door to a steady stream of new attacks on execution methodology.
On balance, I suspect that Kennedy's sense of morality will outweigh his concerns about not over-regulating the states, leading him to reach the result that the current protocol for lethal injection violates the Eighth Amendment.
Over at CBS News, Andrew Cohen makes a similar prediction. Doug Berman calls Cohen's prediction "sensible," but cautions that "we might possibly be in for some surprises in Baze, in part because I suspect that a few Justices may be eager to avoid a 5-4 ruling in this setting."