The Supreme Court turned away an appeal on Monday brought by a man who faces the very real possibility of being tortured to death. Missouri intends to execute Ernest Johnson, who was sentenced to death in 1994, using pentobarbital; due to Johnson’s unique medical condition, the drug may inflict excruciating agony as he dies. Just two years ago, the court’s conservative majority—including, most prominently, Justice Brett Kavanaugh—suggested that an inmate in this exact situation could demand a different, less painful execution.
Johnson did precisely what Kavanaugh asked, asking that Missouri kill him by firing squad instead of lethal injection. Yet Kavanaugh and his five conservative colleagues ignored his plea on Monday, condemning Johnson to a death that may be violent and prolonged. In her pointed dissent, Justice Sonia Sotomayor highlighted her colleague’s perverse retreat from his earlier promise. It appears that Sotomayor, like Justice Elena Kagan, is fed up with Kavanaugh’s habit of posturing as a moderate, then voting like a reactionary. When the stakes are low, Kavanaugh knows how to sound like a reasonable, empathetic centrist. But when an actual person’s rights are on the line, Kavanaugh’s vote is nowhere to be found.
Johnson v. Precythe, the case that SCOTUS swatted away on Monday, constitutes yet another challenge to the grisly impact of lethal injection on the human body. In 2008, Johnson—who was convicted of murder and sentenced to death in 1994—underwent brain surgery to remove a tumor. In 2008, doctors removed about 20 percent of his brain tissue, causing severe scarring that left a brain defect. They did not eliminate the entire tumor. This trauma to Johnson’s brain, combined with remaining tumor cells, triggered epilepsy. Missouri now wants to kill him using pentobarbital, but the drug both triggers seizure and exaggerates sensations of pain. In 2016, Johnson alleged that lethal injection would therefore trigger a massive seizure and inflict an unconstitutional amount of pain, and initially asked that Missouri execute him using nitrogen gas instead.
This request was not far-fetched, since Missouri law explicitly authorizes the use of nitrogen gas in executions. In 2019’s Bucklew v. Precythe, however, the Supreme Court ruled that Missouri’s death row inmates could not demand death by gassing as an alternative to lethal injection. The court’s conservative majority held that gassing was not a viable option because it could not be “readily implemented” and had “no track record of successful use.”(Missouri’s neighbor Oklahoma currently uses gas for executions, as have many other states throughout history.) In short, Missouri did not want to figure out how to gas its prisoners, and the Supreme Court would not force it to learn. A state’s refusal to adopt new methods of execution can justify torture.
Bucklew was a brutal decision that was made possible by Justice Anthony Kennedy’s retirement. Kennedy served as a moderating force on Eighth Amendment issues, often limiting the scope of conservative decisions on capital punishment. And, indeed, shortly before he retired, Kennedy cast the deciding vote in a 5–4 decision staying the execution at issue in Bucklew. By the time the court heard arguments in the case, though, Kennedy had retired. It seems his hand-picked successor, Kavanaugh, was content with Bucklew’s extremism, since he joined the majority.
While Kavanaugh did not moderate Bucklew from a legal perspective, he did deploy a rhetorical smoke screen to make the decision sound less cruel. The justice wrote a concurring opinion to “underscore” an “additional holding” of Bucklew that favored capital defendants, one that “all nine Justices today agree on.” Yes, an inmate must present an alternative method of execution to avoid torturous lethal injection, the justice wrote. But, he added, “the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision.” Thus, there is “little likelihood” that an inmate will not be able to identify a feasible alternative. Kavanaugh also pointed out that Missouri had even conceded, at oral argument, that inmates could request a firing squad, even though that method is not authorized by state law.
Kavanaugh’s concurring opinion in Bucklew set out a clear path for Johnson. He could no longer demand death by nitrogen gas. But he could ask for death by firing squad, as the state itself admitted before the Supreme Court. So he tried to amend his complaint to plead death by firing squad as an alternative to lethal injection. Then he ran into a roadblock at the 8th U.S. Circuit Court of Appeals. According to the 8th Circuit, Johnson’s request came too late; he should have requested a firing squad earlier, before Bucklew came down, and before SCOTUS gave him a legal basis to do so.
How could that be? As Kavanaugh explained, Bucklew marked the first time the Supreme Court declared that capital defendants could request a method of execution that is not authorized under state law. Yet the 8th Circuit did not see it that way. It held that Bucklew did not constitute “an intervening change in law” that would allow Johnson to amend his complaint.
Kavanaugh should have leapt at the chance to correct this holding, which contradicted his own concurrence. But on Monday, he declined the opportunity. His inaction prompted Sotomayor, in dissent, to foreground his broken promise. Sotomayor’s dissent repeatedly cited Kavanaugh’s concurring opinion in Bucklew, quoting from it extensively. It was Kavanaugh, she noted, who explicitly wrote that Bucklew changed the law (which the 8th Circuit denied). It was Kavanaugh who wrote that inmates “in exactly this situation should have little trouble identifying an available alternative.” And it was Kavanaugh who “emphasized” Missouri’s agreement that an inmate could request a firing squad.
Johnson’s “only misstep,” Sotomayor wrote, was “failing to predict Bucklew and address it pre-emptively. He bears no fault for that.” The fault lies with Kavanaugh, who extended the hope of relief, then walked away when Johnson tried to take him up on it.
Depending on your 401 (K) or your pension is a recipe for retirement disaster! America is facing a retirement crisis and every day there are more and more victims of this corruption.
20:01
directly ahead of his own political
interest and you know he his great
regret is saying read my lips Dukakis told me a great story about
their post-election courtesy call and
he’s there standing there talking and
Bush says well I certainly can’t raise
taxes in the first year and Dukakis is
like this guy just kicked my ass saying
he never raised taxes and he’s talking
about in the first year you know it was
it was an amazing moment but I think he
redeemed himself at every point and he
knew in some ways talking about ninety
two after the budget deal after the
triumphs of the first Gulf War he he had
a sense that the work of his presidency
if that up to that point was over yeah I
think the work of his life was over if
you look at it I mean biographically you
Here’s my succinct request to Donald Trump and all the Democrats and Republicans trying to unseat him.
The founders wanted to create a new kind of country where individuals — and individual communities — could pursue happiness as they saw fit. They didn’t achieve that instantaneously, and we still don’t have it in meaningful respects, but they set up the machinery to make it achievable. This doesn’t mean the founders were against unity in all circumstances. Their attitude could be described as in necessariis unitas, in non-necessariis libertas, in utrisque caritas. In essential things unity, in non-essential things liberty, and in all things charity. In other words, they understood that unity was a powerful tool, best used sparingly and only when truly needed. Odds are good that this was — or is — the basic, unstated rule in your own family. Good parents don’t demand total unity from their children, dictating what hobbies and interests they can have. We might force our kids to finish their broccoli, but even then we don’t demand they “celebrate broccoli!” I wish my daughter shared my interest in certain things, but I have no interest in forcing her too, in part because I know that’s futile. Spouses reserve unity as an imperative for the truly important things. My wife hates my cigars and has a? fondness for “wizard shows.” But we tend to agree on the big things. That seems right to me.
What is fascinating to me is that in the centuries since the Enlightenment, unbridled unity, enforced and encouraged from above, has been the single greatest source of evil, misery, and oppression on a mass scale, and yet we still treat unity like some unalloyed good.
Just Drop It
Okay enough of all that. Let’s get to the here and now. Joe Biden promised this week that if he’s president, he will unite the country. Newsflash: He won’t. Nor will any of the other Democrats. Donald Trump won’t do it either — and certainly hasn’t so far. George W. Bush wasn’t a uniter. Barack Obama promised unity more than any politician in modern memory — how did he do?
For the reasons spelled out above, our system isn’t designed to be unified by a president — or anybody else. The Era of Good Feelings when we only had one party and a supposed sense of nationality was a hot mess. It’s kind of hilarious to hear Democrats talk endlessly about the need to return to “constitutional norms” in one moment and then talk about the need to unify the whole country towards a singular agenda in the next. Our constitutional norms enforce an adversarial system of separated powers where we hash out our disagreements and protect our interests in political combat. Democracy itself is not about agreement but disagreement. And yet Kamala Harris recently said that as president, she’d give Congress 100 days to do exactly what she wants, and if they don’t she’ll do it herself. You know why Congress might not do what she wants it to do? Because we’re not unified on the issue of guns. In a democracy, when you don’t have unity, it means you don’t get the votes you need. And when you don’t get the votes you need, you don’t get to have your way. Constitutional norms, my ass.
So here’s my explanation for why I don’t want politicians to promise national unity. First, they can’t and shouldn’t try. Tom Sowell was on the 100th episode of my podcast this week, and one of the main takeaways was that we shouldn’t talk about doing things we cannot do. Joe Biden has been on the political scene since the Pleistocene Era.What evidence is there that he has the chops to convince Republicans to stop being Republicans? When President Bernie Sanders gives the vote to rapists and terrorists still in jail, will we be edging closer to national unity? When President Warren makes good on her bribe of college kids with unpaid student loans, what makes you think this will usher in an era of comity and national purpose?
But more importantly, when you promise people something you can’t deliver you make them mad when you don’t deliver it. I’m convinced that one of the reasons the Democrats spend their time calling every inconvenient institution and voter racist is that they are embittered by Barack Obama’s spectacular failure to deliver on the promises he made and the even grander promises his biggest fans projected upon him. When you convince people they’re about to get everything they want and then you don’t follow through, two reactions are common. The first is a bitter and cynical nihilism that says nothing good can be accomplished. The second is an unconquerable conviction that evil people or forces thwarted the righteous from achieving something that was almost in their grasp. The globalists don’t want us to have nice things! The corporations keep the electric car down! The Jooooooooz bought off Congress! The Establishment pulled the plug! The Revolution was hijacked! The system was rigged! The founders were Stonecutters!