A year of controversy for the Supreme Court

The Brookings Institution held a briefing on U.S. Supreme Court rulings where high-profile cases, such as gun control, Guantanamo Bay detentions, and the death penalty, were discussed. Brookings Fellow Benjamin Wittes moderated the Judicial Issues Forum. Wittes explained that the Supreme Court has experienced a varied last couple of terms making it hard to discern an aggregate pattern from their rulings.

Stuart Taylor, a Nonresident Senior Fellow at The Brookings Institution, talked about the recent gun control case. When dealing with this case, Taylor explained that it was the first time in history that the Supreme Court definitively interpreted the Second Amendment. Taylor said that the Court produced a ruling which struck down the Washington, D.C. gun control law, holding the individual right to bear arms. However, Taylor also explained that this ruling has only limited impact because there aren’t many really tough gun control laws.

Taylor also talked about the Guantanamo Bay case. He explained that this case produced the first decision in which the Supreme Court ever overturned a previous decision made by the President during a time of war. Congress re-established habeas corpus at Guantanamo, but the Court also made it clear that the U.S. government is not holding a single person illegally at the base. Taylor said that even though the decision has been very controversial, the most important part of it is the fact that it didn’t require anyone at the base to walk free. Taylor explained that Congress needs to design a system open enough for the public to know how scary some detainess really are.

Randolph Moss, a partner at WilmerHale, talked about the lethal injection case regarding a prison in Kentucky and the Eighth Amendment. Moss explained that in most states lethal injection is administered with a process of three different drugs. The argument in this case said that this process was not the most humane way. However, Moss said that there was not enough evidence or facts produced to show that the inmate experienced any unnecessary pain.

Supreme Court rules lethal injection not "cruel and unusual"

Chief Justice Roberts (who got Justices Kennedy and Alito to agree, while no other opinion was joined by more than one other Justice) says that a method of execution is only unconsitutional if there is a "substantial risk of serious harm". Here there is a risk, but it is not substantial. The challengers did show that there are ways the injection procedure could be administered improperly, causing severe pain, but they did not establish that the risk was common. Existence of safe alternative execution methods doesn't help, either, especially since the proposed alternatives are untested; no one could say for certain that the alternatives would be significantly better.

Justice Stevens has a long opinion discussing the death penalty and how it's changed over time. He concludes, however, that the Supreme Court's prior holdings establish that the death penalty is constitutional, and he therefore holds that lethal injection is constitutional.

Justice Scalia criticizes Justice Stevens's opinion, saying none of what he says has anything to do with the text of the Constitution.

Justice Thomas, joined by Scalia, says Roberts's opinion looking for "substantial risk of severe harm" has no basis in the text of the Constitution.

Justice Breyer doubts studies showing lethal injection causes pain and doubts availability of better alternatives.