The Justices Deliver Fuzzy Ruling

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Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
It starts off like a bad joke: what do you get when you have seven different opinions from nine judges? Only there is nothing funny about the weak, fuzzy and ultimately counterproductive way in which the Supreme Court has just handled the issue of how prison officials are supposed to lethally inject death-row prisoners on execution day.

It's one thing to unanimously punt the ball in a controversial case-the Justices unfortunately do that all the time. But in the closely-watched Baze v. Rees they couldn't even agree upon what they couldn't agree upon when it comes to the constitutionality of injection protocols in Kentucky. Seven different opinions! And not a one of them particularly profound. With neither the Court's right nor its left satisfied with the mushy result? That's not exactly making lemonade out of lemons, if you ask me.

Instead of issuing clear directives to the dozens of states eagerly awaiting instructions on how to implement execution protocols, the Court's majority mustered only this: lethal injection protocols in Kentucky are not "objectively intolerable," the majority declared, because they are "widely tolerated" in other states around the country and by the federal government. There you have it - the law is why it is because it is - the ultimate in judicial restraint with a Yes, We Have No Bananas flair.

Instead of announcing a legal standard that would narrow the pipeline of future litigation over injection procedures, the Court's feckless majority only invited future cases, a point brought out by one Justice who agreed with the result (Justice John Paul Stevens) and one who did not (Justice Ruth Bader Ginsburg). Perhaps it was inevitable, as was made clear during oral argument a few months ago, that any ruling in the case would have generated a new generation of lawsuits about injection methods-how many drugs, the skill of the technicians, etc. But these hodgepodged rulings only guarantee that unhappy result.

Alas, it's arguable that things are going to get worse from here on in because the several of the Justices seemed to open up fresh wounds in the fight over capital punishment. Instead of the peace, love and understanding that Chief Justice John G. Roberts, Jr. all but promised during his confirmation hearing a few years ago, the Court in Rees acted like a bunch of intemperate brats. Go ahead and read Justice Antonin Scalia's screed against Justice Stevens and tell me you think the Supremes were able and willing to keep their eyes on the ball in this case.

Reading the two opinions - Stevens and Scalia - makes you think of the family fight taking place at the dinner table or the great ESPN commercial feature Peyton and Eli Manning. In future lawsuits, advocates on all sides of the debate over capital punishment will cite chapter and verse their strong words. And if it weren't painfully obvious before now we surely can say that Chief Justice Roberts has been as unsuccessful in herding the eight other cats who make up the Court as almost all of his illustrious predecessors have been. If this is the Roberts Court, in other words, and I'm Chief Justice Roberts? I am asking for a do-over.

Of the impact of the ruling there is very little good to say. As a practical matter it opens up the spigot again for executions in this country; a practice that was effectively put on hold by the run-up to this ruling. The irony in this is that the Court Wednesday did not declare all lethal injection protocols to be constitutionally sound so, theoretically anyway, a man or woman might be executed over the next few weeks or months through methods that are actually worse than Kentucky's. Such is the crapshoot that capital punishment is and always has been in America.

From a legal view, officials in states which use lethal injection as the method of execution now have a choice to make. They can use this ruling to do nothing, figuring that by the time the legal challenges against them get any traction we'll be years down the road. Certainly the Court's majority did nothing to make them tremble that they'll ultimately have to pay a price. Or, these public servants can take the productive, constructive approach and fix their injection problems without a "court order" to do so. They can make sure - far more so than Kentucky has done - that there are no "substantial or imminent" risks inherent in the injection procedures.

This is a choice these men and women had last year and the year before that. The Supreme Court Wednesday refused to order them to make lethal injection more professional, more humane, and less susceptible to horrible abuse. The Court refused to require the states to lethally inject prisoners at least as humanely as Kentucky requires its veterinarians to euthanize the Commonwealth's beloved pets. But that doesn't preclude states from doing the right thing themselves, somewhat voluntarily. And, already, some are, including the biggies of Florida, Texas and California.

Proof, I suppose, that some public officials are able to fill the void when the highest court in the land falls flat on its face.
  • Andrew Cohen

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