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.
You can credit social movements for that.
Representative Ayanna Pressley broke with traditional diversity politics last month when she said at a conference in Philadelphia, “we don’t need black faces that don’t want to be a black voice.” Instead, “we need you to represent that voice.”
The members of the so-called squad who were also on the panel nodded in agreement. They are the defiant and unapologetic voices of the communities that produced them. Since being elected last fall, these four progressive Democratic congresswomen have pushed the limits of what most liberals mean by the contested term “diversity. ”
Some of their colleagues may have preferred that they simply come in and add color to the room — but in every other way behave as their long-established white predecessors have.
But they have a different agenda. They have a transformative notion of diversity that comes with a different set of expectations and metrics. They insist on bringing the concerns of historically marginalized communities into the rooms where decisions are made, even when that is seen as impolite or inappropriate.
This is evident through their politics, priorities and style — not only their presence. Consider Rashida Tlaib’s “Lift + Act” bill, which comes as close as any to advancing the radical economic principle of universal guaranteed income that Martin Luther King Jr. so eloquently advocated some 50 years ago.
They’re exposing the false belief that American foreign policy is infallible. This is exemplified by their critique of Washington’s unconditional support for Israel. And recall the memorable hearing in February when Ilhan Omar challenged Elliott Abrams, a Trump administration official, over his role in supporting Central American death squads in the 1980s.
All of them, along with some other Democrats, have called for the outright abolition of Immigration and Customs Enforcement because of its widely publicized mistreatment of migrant families and children.
The squad understands that “diversity” is meaningless if the measure of success is “sameness.” The congresswomen are choosing to do politics a different way because they recognize that Congress has never worked for their communities.
From the start, Alexandria Ocasio-Cortez was urged to stay in her place when she insisted upon committee appointments deemed out of reach for a freshman representative. It was those committees that would have the most impact on the values she was elected to advance, and so she persisted, violating protocol in the process.
She was doing something unprecedented when, as a political neophyte, she introduced the Green New Deal resolution without support from the party leadership. Similarly, Ms. Tlaib and Ms. Omar have called for President Trump’s impeachment and passionately advocated the rights of Palestinians, breaking with the more tactically conservative approach of the House speaker, Nancy Pelosi, on both matters. However, as the scholar-activist Keeanga-Yamahtta Taylor wrote in Jacobin, they don’t just represent different personalities vis-à-vis Ms. Pelosi but different worldviews.
Over the past nine months, the squad’s members have made good on their promises to be agents of change, not just fresh faces. Radical inclusivity means that people from different communities, backgrounds and ideological traditions will do their jobs differently and will bring new sensibilities, commitments and understanding with them when they sit at the tables of power. If they are doing their jobs, they will be accountable to people who sent them there, not maintaining the status quo. Anything less is merely cosmetic.
One outcome of exclusion and white privilege is that people of color don’t see ourselves reflected in positions of power often enough. That is the least of it. A more consequential outcome is that our communities are underserved, our children racially profiled by the police, unfairly pushed out of schools or locked up in disproportionate numbers. “We expect elected officials to fight hard for a progressive agenda, and we are not cutting anyone slack simply because they look like us,” argues Chinyere Tutashinda, a leader in the Movement for Black Lives, a coalition of more than 150 black-led organizations across the country.
Ms. Tlaib cares deeply about accountability. She often tells her audiences that she proudly represents Michigan’s 13th Congressional District, one of the poorest in the country, with one of the largest black populations of any district. She is committed to serving its interests and speaking with its voice. When, soon after she was sworn into office in January, she proclaimed that “we are going to impeach” the president, that is the constituency she was speaking for: a population that feels assaulted by Republican policies and abandoned by mainstream Democrats.
The squad has tilled new ground in reanimating a fighting spirit within the Democratic Party and revived its left flank. A more timid approach would have been to go to Washington and blend in. The women’s approach is admirably and courageously to stand out.
This is threatening and offensive to many of their conservative and, dare I say, racist colleagues. In his typical meanspirited manner, the president has hurled numerous insults at them; others have piled on too. Senator Lindsey Graham of South Carolina was all but foaming at the mouth on Fox News in July. They are “a bunch of communists,” he said, “who hate our own country.” And “they stand for all the things most Americans disagree with.”
Really? A new poll by The Economist and YouGov indicates that each of the four women has a higher approval rating than Mr. Trump himself. And among independent voters, Mr. Trump still loses by more than 6 percentage points to each squad member. Speaker Pelosi, for her part, has alternated among a mild-mannered defense of her junior colleagues, dismissive comments and an outright reprimand in one instance.A similar dynamic is playing out in politics around the country, as the noted political strategist Jessica Byrd told me. Her electoral firm, Three Point Strategies, has been helping black activists win elections over the last five years. “Without fail, these women are discounted until the voices of the people they represent become too loud to ignore,” she said. “These elections are an incredible symbol that movement can win and is winning. They are a symbol that accountability is possible.”
Many young activists feel protective of the congresswomen, seeing their vulnerabilities as linked. Thenjiwe McHarris was one of 100 black women who hosted a rally in April to protest the attacks and threats against Ms. Omar. “What’s happening to the squad is deeply connected to what’s happening to our communities and our progressive movements,” she told me.
But the squad, and so many other women of color in politics, are not the sit-down-and-shut-up types. And that has earned them widespread adoration. Thousands have signed petitions in their support. The congresswomen collectively enjoy millions of followers on Twitter. And they earn high praise from the millennial activists who have played a monumental but largely unknown role in pushing the party left.
Maurice Mitchell, who now runs the Working Families Party, sees them as central to a seismic shift in electoral politics post-2016. “This moment has radicalized liberals and electoralized radicals,” he told me. Meaning there are new political actors with new agendas and expectations.
I am reminded of another “diversity” moment when the establishment felt threatened. It was when Sonia Sotomayor was being considered for the Supreme Court in 2009. Her opponents had dredged up a speech from eight years earlier in which she said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
She opined that the experience of racial and gender oppression, learned survival strategies and cultural practices could and should be brought to bear when representatives of marginalized communities assume decision-making roles. This caused quite a stir.
But what she rightly seemed to suggest was that, if who we are doesn’t matter, we are aiming for tokenism more than transformation of elite institutions. She was also intimating that, if I come in, my family, my community, my elders, my people, will in some form, come with me.These women — Justice Sotomayor and the squad — have all insisted upon bringing their whole selves into these insider spaces where women and people of color have been historically told to either “go back” to where they came from, or “listen and learn” in terms of how things are done if they want to succeed. The former message comes from the right, the latter from liberal insiders.
A key demand of this new generation of activists of color has been accountability. They have seen historic numbers of women and black and brown people elected to office, including the nation’s first black president. That alone is insufficient, they have decided. They have seen the limits of representational politics. They want leaders who are immersed in communities who remember where they came from when they attain positions of power. Or better yet, politicians who never leave in all the ways that matter.
Well, the squad members, all with varying activist backgrounds, are a part of that generation. They are products of Black Lives Matter, #MeToo, Occupy Wall Street and an increasingly militant immigrant rights movement — bold, game-changing social movements that are not afraid to speak truth to power and upset business as usual.
If the millennial social movements are not “your grandmother’s” social movements, then the squad members are certainly not your typical “minority” politicians. They are wisely acting as if they represent the demographic majority that their generation will become. It is significant that a majority of millennials polled by Harvard researchers in 2016 rejected capitalism and leaned toward the left politics that these four congresswomen represent. They are the future of the Democratic Party. So are their ideals. And we need more politicians like them.
The rules of oral argument at the Supreme Court are strict: when a justice speaks, the advocate has to shut up. But a law student noticed that the rules were getting broken again and again —by men. He and his professor set out to chart an epidemic of interruptions. If women can’t catch a break in the boardroom or the legislature (or at the MTV VMA’s), what’s it going to take to let them speak from the bench of the highest court in the land?
.. During World War II, about 120,000 men, women and children of Japanese descent, including almost 40,000 foreign nationals living on the West Coast, were removed from their homes, forced to forfeit their possessions and then incarcerated on the basis of military orders authorized by the president.
.. The real reason for the government’s deplorable treatment of Japanese Americans was not acts of espionage but rather a baseless perception of disloyalty grounded in racial stereotypes
.. When President Trump used questionable evidence to issue executive orders last year banning immigration from predominantly Muslim countries, I heard the same kind of stereotypes that targeted the Japanese-Americans in World War II being used against Muslims.
.. we implored the court to repudiate its decisions in those cases while affirming their greater legacy: Blind deference to the executive branch, even in areas in which the president must wield wide discretion, is incompatible with the protection of fundamental freedoms.
.. But the court’s repudiation of the Korematsu decision tells only half the story. Although it correctly rejected the abhorrent race-based relocation and incarceration of Japanese Americans, it failed to recognize — and reject — the rationale that led to that infamous decision. In fact, the Supreme Court indicated that the reason it addressed Korematsu was because the dissenting justices noted the “stark parallels between the reasoning of” the two cases.
.. the Supreme Court seemed to repeat the same bad logic of the 1940s decision by rubber stamping the Trump administration’s bald assertions that the “immigration travel ban” is justified by national security.
.. As Justice Sonia Sotomayor explained in her dissent
.. By blindly accepting the government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the court redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”
.. The court’s decision replaced one injustice with another nearly 75 years later.
Many other forms of judicial behavior also changed in the mid-1990s. Starting in 1995, the time that justices spent speaking during oral argument skyrocketed, leaving the advocates with far less of the 60-minute argument to make their cases.
.. The justices as a group have taken an additional 13 minutes of argument after 1995 than before, an increase of 22 percent.
.. What caused these trends?
.. Rather, behavior at the Supreme Court changed in response to a radical increase in political polarization.
.. The 1994 Republican Revolution, led by Rep. Newt Gingrich (Ga.), coincided with a rapid rise in polarization. Ideological distance between the two parties grew, and the number of moderates in Congress plummeted. Norms of bipartisan lawmaking began to erode, and eventually the Republican majority impeached a popular Democratic president.
.. During this period, the justices’ questions to litigants barely increased, but nonquestions — occasions when the justices made statements, rebutted their colleagues and presented arguments — rose precipitously. Since 1995, the justices have made comments almost three times as often as they have asked questions
.. Together, the justices have made more than 100 additional comments per case since 1995. Rather than inviting advocates to explain their positions, the justices are often making the cases themselves.
.. The link with polarization is clear: The justices now disproportionately disrupt the side that they ultimately rule against.
.. The justices generally direct their true questions to the side they support and their comments to the side they oppose. The difference, again, increased massively since 1995.
.. Justices also began more frequently to supply answers through leading questions and to step in with deflection and rebuttal. At oral argument in Dean v. United States last year, after Justice Sonia Sotomayor repeatedly came to the aid of a struggling advocate, he mistook Sotomayor for Justice Elena Kagan. “She’s Justice Sotomayor,” Kagan told him. “She was the one helping you.” It was an unusually frank recognition of what oral arguments have become: a chance for the justices to support their side over the other one.