Controversial execution drug OK, divided Supreme Court says; 2 justices question death penalty

WASHINGTON — Trading sharp words, a deeply divided Supreme Court upheld the use of a controversial drug in lethal-injection executions Monday, even as two dissenting justices said for the first time they think it's "highly likely" the death penalty itself is unconstitutional.

On their last day together until the fall, the justices voted 5-4 in a case from Oklahoma that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment.

The court also divided 5-4 in cases upholding congressional districts drawn by independent commissions and calling into question first-ever limits on mercury emissions from power plants. In addition, the justices also agreed to hear an important affirmative action case in the fall and acted to keep Texas abortion clinics open amid a legal fight that threatens to close most of them.

In the dispute over the lethal-injection drug, midazolam was used in Arizona, Ohio and Oklahoma executions in 2014. The executions took longer than usual and raised concerns that the drug did not perform its intended task of putting inmates into a coma-like sleep.

Justice Samuel Alito said for a conservative majority that arguments the drug could not be used effectively as a sedative in executions were speculative and he dismissed problems in executions in Arizona and Oklahoma as "having little probative value for present purposes."

In a biting dissent, Justice Sonia Sotomayor said, "Under the court's new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake."

Alito responded, saying "the dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments."

"I believe it highly likely that the death penalty violates the Eighth Amendment," Breyer said, drawing on cases he has reviewed in more than 20 years on the Supreme Court bench.

More than 100 death row-inmates have been exonerated, showing that the death penalty is unreliable, Breyer said. He said it also is imposed arbitrarily, takes far too long to carry out and has been abandoned by most of the country. Last year, just seven states carried out executions, he said.

The two senior liberal justices joined retired Justice John Paul Stevens, who was in the courtroom Monday, and Justice Harry Blackmun in late-career pronouncements calling into question the use of the death penalty, although Breyer and Ginsburg stopped short of declaring their outright opposition to capital punishment.

In 1972, the Supreme Court struck down every state's death penalty laws. Some justices believed at the time that this decision effectively would end capital punishment.

Instead, many states wrote new laws, and four years later the court reinstated the death penalty, a decision in which Stevens joined.

Scalia used Breyer's own words to complain that the liberal justices were willing to discard long-settled principles in a term in which the left side of the court won most of the closely contested cases, though not the lethal injection dispute. "It is not often in the law that so few have so quickly changed so much," Scalia said. Breyer employed those exact words several years ago at the end of a term in which the conservative justices frequently prevailed.

The Oklahoma case has been especially contentious from the start. The Supreme Court became involved in January with an unusually public disagreement among the justices over executions.

Then, the court refused to block Oklahoma inmate Charles Warner's execution despite the objections of the four liberal justices. In a strongly worded dissent for the four, Sotomayor said: "The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution."

Eight days later, the justices agreed to hear the case of three other Oklahoma death-row prisoners. It takes just four votes among the nine justices to agree to hear a case, but five votes to place a hold on an execution.

When the case was argued in late April, the justices engaged in combative exchanges and impassioned debate about capital punishment more generally.

In 2008, the court upheld Kentucky's use of a three-drug execution method that employed a barbiturate as the first drug, intended to render an inmate unconscious. But because of problems obtaining drugs, no state uses the precise combination at issue in that case.

Four states have used midazolam in executions: Arizona, Florida, Ohio and Oklahoma. Also, Alabama, Arkansas, Louisiana and Virginia allow for midazolam but have not used it in executions.

Last April's execution of Clayton Lockett was the first time Oklahoma used midazolam. Lockett writhed on a gurney, moaned and clenched his teeth for several minutes before prison officials tried to halt the process. Lockett died after 43 minutes.

Executions in Arizona and Ohio that used midazolam also went on longer than expected as inmates gasped and made other noises before dying.

Meanwhile, the court challenge has prompted Oklahoma to approve nitrogen gas as an alternative death penalty method if lethal injections aren't possible, either because of a court ruling or a drug shortage.

In other action Monday, the court:

— Upheld independent commissions that draw congressional districts in Arizona, California and 11 other states in a bid to reduce partisanship in electoral mapmaking.

— Called into question first-ever limits on emissions of mercury and other toxic pollutants from power plants, in a ruling that said the Environmental Protection Agency failed to account for the cost of the regulations at the outset.

— Added a case from Texas about the use of race in college admissions for its term that begins in October.