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Oral Argument in Baze v. Rees:
This morning the Supreme Court held oral argument in Baze v. Rees, the case on the constitutionality of the current method of lethal injection used to carry out executions. A few impressions of the argument:

  (1) On the whole I thought it went very well for the Respondents, the Commonwealth of Kentucky. The Justices were clearly frustrated with the lack of record supporting the Petitioners' side: they seemed to think that the issue of alternatives to the three-drug protocol hadn't really been raised below, and they thought the claims about the different risks associated with different protocols were speculative.

  (2) Roy Englert was excellent as counsel for Kentucky. He came off as the reasonable man, avoided any grand claims, conceded arguments he didn't need, and stuck to the record. It seemed to work: even Justice Stevens seemed persuaded that the record in this case showed that Kentucky was actually pretty careful and that there wasn't much of a risk of error.

  (3) The big question seemed to be what to do if record in this case cannot support an 8th Amendment claim but other records might be different. In this case, the state was pretty careful and there wasn't much of a record on alternatives. But what about other cases in which the state is less careful or a better records exists? Should the Court be more or less open to those other cases?

  A few Justices (Stevens and Souter, if I recall correctly) suggested remanding so a record could be developed on the viability of alternatives. There was then an interesting debate on how this would play out; Deputy SG Greg Garre pointed out that it was the Petitioner who failed to develop the record, and the Court doesn't normally force a relitigation of the record just so the Justices can address the implication of an issue with other cases in mind. Justice Scalia pointed out that remanding for the development of a factual record could mean a moratorium on the death penalty for years as the trial court heard evidence and the case winded its way back through the system; great for death penalty opponents, he suggested, but a problem otherwise. On the other hand, Justice Souter (I think) expressed the concern that they needed to address these questions once and for all: they couldn't do the constitutionality of protocols piecemeal.

  This exchange brought up the problem I blogged about in my earlier post on Baze: "it's not like the Supreme Court can order the creation of a commission to study the reliability of different drug cocktails. Given that, a Justice wanting to push states to improve their methods of execution won't have a lot of obvious specific recommendations to make." I gather a few of the Justices wanted to do the next best thing; while they can't order the creation of a commission, they can remand to a trial court with instructions to hold hearings on the reliability of different protocols.

  (4) Justice Kennedy was generally quiet. He asked an early question of the Petitioners, to establish that their claim was about risk of error. But he was generally pretty quiet.

  (5) When I've been blogging about Baze, I have often found myself initially writing "three judge cocktail" instead of "three drug cocktail," presumably because federal courts of appeals decide cases with "three judge panels." I was interested to see that at least two Justices had the same instincts: both Justices Stevens and Alito referred to "three judge cocktails" during the argument.

  C-SPAN2 is currently finishing up a broadcast of the argument, and I believe it will have a permanently-linkable version posted later today.
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