Scalia concurs, as does Thomas (joined by Scalia); Breyer dissents, joined by RBG.
Sotomayor dissents, joined by RBG, Breyer, and Kagan.
The Court rules that the death-row inmates have failed to establish a likelihood of success on the merits on their claim that the use of midazolam violates the Eighth Amendment.
Eighth Amendment, of course, prohibits cruel and unusual punishment.
This does not come as that much of a surprise after the oral argument, truthfully.
A little background: As part of its lethal injection protocol for executions, Oklahoma uses a sedative called midazolam, which is used to treat anxiety, to make the inmate unconscious. Two other drugs then paralyze him and stop his heart. A group of Oklahoma death-row inmates have challenged the state’s use of midazolam, arguing that it cannot reliably render an inmate unconscious.
We will be hosting a "snap" symposium on this decision. Stay tuned.
The difference between midazolam and other drugs (like pentobarbitol) is that it's not a barbiturate. So the inmates' argument was that it wouldn't cause the sort of deep coma that would prevent pain later in the execution procedure.
The oral argument in this case was one of the most heated arguments I've ever seen.
Justice Kennedy and the Chief did not file separate opinions, which is why I didn't mention them.
Justice Breyer, joined by RBG, would ask for broader briefing on whether the death penalty is constitutional. That's major. But they obviously do not have the votes for that.
There is a very important part of the Court's opinion: it holds that the inmates did not prove that midazolam was cruel and unusual when compared to known and available alternatives. The inmates had argued that the state could use pentobarbital or sodium thiopental, but the Court holds today that those drugs are unavailable. The inmates argued that they shouldn't have to plead an alternative, but the Court rejected that argument.
Alito is still reading from his summary of the decision. Not clear whether anyone will read a dissent from the bench. My guess is yes.
And just in case any of you are wondering: this is the first opinion of the day. The Justices read their opinions from the bench in order of reverse seniority, so we could still get opinions today from anyone but Kagan and Sotomayor.
The Court tried to make the Glossip opinion narrower by emphasizing the deference given to district courts' factual findings (the clear error standard). So it's not 100% clear what effect this ruling will have on cases that have not yet gone through a hearing (e.g., cases at the motion to dismiss stage or summary judgment stage).
Sotomayor is indeed reading her dissent from the bench. So it could be a while before we move on to the next decision.
The concurring opinions in Glossip (Scalia's and Thomas's) principally respond to Justice Breyer's dissent. A very heated debate about the death penalty occurring in those separate opinions.
Breyer is now reading from his dissent.
Scalia is now reading from his concurrence to respond to Breyer. There are some strong feelings going on here.
Tony Mauro has a great article today on how the Justices manage to get along after all of the end-of-Term sniping. It's in the Supreme Court Brief, so you probably need a subscription.