Listen to This—Justice Scalia’s Remarkable Bench Announcement in Glossip

Last term at the Supreme Court ended with a bit of drama from the bench that provided a fitting end to a term marked by more than its fair share of raw emotions in the courtroom.  

The last major decision announcement was Glossip v. Gross, a challenge to Oklahoma’s lethal injection protocol.  Glossip, a prisoner on death row, challenged the 3-drug protocol on the grounds that the first of the drugs, which was designed to anesthetize the prisoner, was of questionable efficacy.  Glossip lost.  A five-justice majority upheld the lower court’s ruling that found the lethal injection protocol did not constitute “cruel and unusual punishment” as prohibited by the Eighth Amendment.  

April’s oral arguments in Glossip produced a particularly heated discussion in the courtroom.  Justice Alito accused anti-death penalty advocates of engaging in a “guerilla war” by pressuring drug companies to get out of the business of supplying drugs used in executions.  Oral arguments also took several macabre turns, as the justices and the lawyers discussed various methods of execution: hanging, gas chambers, firing squads.  At one point the discussion even turned to the constitutionality of execution by being burned alive.  (All agreed that burning as a method of execution was unconstitutional, but Justice Alito was curious about whether the same could be said if the condemned were unconscious and felt no pain.)

An emotional oral argument with wild hypotheticals may not be the norm at the Court, but it is hardly unprecedented.  It was the bench announcements in Glossip—the audio of which was recently released by the Court—that broke new ground for the Roberts Court.  When an opinion is handed down, the author of the majority opinion takes a few minutes to summarize the opinion.  On occasion—usually just a few times a term—the author of a dissenting opinion will also speak from the bench.  But in Glossip, four different justices wanted to talk about their opinions from the bench: a majority opinion, two dissents, and a concurrence.

Justice Alito announced the opinion of the Court rejecting Glossip’s Eighth Amendment claim. Justice Sotomayor followed with a summary of her dissent.  Her bench statement, only her second oral dissent during her six years on the High Court, made clear her vehement disagreement with the majority’s reasoning.  Justice Breyer then announced his dissenting opinion.  Breyer signed onto Justice Sotomayor’s dissent, but he also wrote a bombshell of an opinion, joined only by Justice Ginsberg, in which he went beyond the issue of the constitutionality of this particular method of execution and raised the question of whether the entire death penalty was unconstitutional.  Such a momentous declaration from two Supreme Court justices, Breyer felt, merited the very rare step of having two dissenting opinions announced from the bench.  

But this was not the end of it.  Justice Scalia has long made clear that he has no patience for anyone who would argue that the death penalty violates the Constitution: the Constitution, he points out, includes several references to capital punishment.  He thus felt the need to join the closing-day performance and announce his own concurring opinion dedicated exclusively to refuting Justice Breyer dissent.  (Scalia’s opinion was more of a dissent from a dissent than a concurrence.)  

Scalia took advantage of his platform and offered a brief statement in which he not only denounced Justice Breyer’s challenge to the constitutionality of the death penalty, but also denounced the Court’s same-sex marriage decision that the justices handed down several days earlier.  He argued that the reasoning of both Justice Kennedy’s ruling striking down state bans on same-sex marriage and Justice Breyer’s argument against the death penalty suffer from the same flaw.  In each case, justices decided an issue that, according to Scalia, the Constitution properly left to the democratic process.  Justice Scalia concluded his statement with a line that Justice Breyer used in his bench dissent in the Parents Involved public school desegregation case of 2007: “It is not often in the law that so few have so quickly changed so much.”  

Listen to the bench announcement here.

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