Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Death Penalty Dust-Ups at the High Court

Date: April 13, 2019

Episode Overview

This episode centers on a series of heated, divisive public disputes among Supreme Court Justices over recent death penalty cases. Host Dahlia Lithwick is joined by Professor Carol Steiker, a leading expert on capital punishment from Harvard Law School, to dissect why these cases evoke such intense responses, and what the current legal battles reveal about the Court’s shifting approach to capital punishment, religious freedom, racial bias, and evolving standards of decency in the American justice system.

Key Discussion Points & Insights

The Increasing Fury in Supreme Court Death Penalty Cases

• Recent weeks have seen particularly ugly and public fights on the Court over capital punishment—even as executions decline nationally ([00:28]).
• Professor Carol Steiker is introduced as a preeminent scholar on these issues ([01:40]).

Notable Quote

“A Supreme Court, presumably more devoted than ever to proving that it all gets along all the time... has been actually willing to punch and scratch and pull hair in a series of big death penalty cases in recent weeks.”
— Dahlia Lithwick ([00:51])

Religious Liberty and Last-Minute Stays: Dominique Ray and Patrick Murphy Cases

Dominique Ray: Preference for Christian Chaplains ([02:41])

• The Court (5–4, conservatives in majority) let an Alabama execution proceed, denying a Muslim inmate’s request for an imam, while allowing a Christian chaplain.
• Justice Kagan’s dissent called this a “shocking and unconscionable intrusion” on religious freedom.
• Carol Steiker discusses how the case reflects deeper conservative distrust toward death penalty litigation, viewing defense lawyers as “gaming the system” rather than acting in good faith ([03:42]).

Patrick Murphy: A Shift for a Buddhist Inmate ([08:58])

• The Court stayed Murphy’s Texas execution because a Buddhist advisor was not allowed.
• The switch in outcome (compared to Ray) is debated—Steiker speculates it reflected backlash to the Ray decision and the cross-cutting nature of religious liberty.
• Possible factors: learned lessons, racial/religious identity differences, and the peculiar exclusion of one faith ([09:50]).

Notable Quote

“There really didn’t seem to be a dime’s worth of difference on the underlying claim. And... the original rationale for the first claim was so preposterous... that I think the court was ready to walk it back.”
— Carol Steiker ([10:35])

Lethal Injection and Method-of-Execution Battles: The Bucklew Case ([11:12])

• Russell Bucklew, with a rare medical disorder, argued Missouri’s lethal injection would cause agonizing suffering, violating the Eighth Amendment.
• Unlike previous global challenges to lethal injection, Bucklew’s was specific to himself.
• The case provoked unusually personal and broad attacks between Justices; the majority (Gorsuch writing) rejected Bucklew’s claim, while liberals used it to attack the entire death penalty system.
• The requirement for inmates to propose their own execution method is called out as both novel and deeply problematic ([12:43], [28:04]).

Notable Quotes

“There was incredible disagreement. Why?... when you’re walking into the execution chamber... these cases force us to be up close and personal with the mechanics of death... it puts supporters in a position where they have to justify this very unseemly violence.”
— Carol Steiker ([14:00])

“It’s very hard to defend the death penalty and they don’t want to be in that position. So...they keep hammering on the table and say, but it’s constitutional and therefore states should be allowed to do it, and...we shouldn’t have to try to defend it on its merits.”
— Carol Steiker ([17:45])

Gorsuch’s Stance: Is There a Right to a Painless Death? ([18:40])

• Gorsuch wrote that the Constitution does not guarantee a painless execution—a stance echoing Justices Alito and Thomas.
• Steiker clarifies that while strong, Gorsuch did not outright reject “evolving standards of decency”—but may have echoed the Court’s rightmost views ([19:46]).

Eighth Amendment Evolution & Supreme Court Dynamics

The Rise (and Possible Decline) of “Evolving Standards of Decency” ([21:31], [22:54])

• Since the mid-20th century, the Court has used the “evolving standards of decency” framework to limit who can be executed (e.g., juveniles, intellectually disabled).
• Anthony Kennedy was pivotal to this shift; his retirement may stall further expansion.
• The current Court is unlikely to reverse these precedents, but also likely won’t extend them ([25:09], [26:17]).

Notable Quote

“The Chief is very concerned about the Court looking partisan...undoing what is now such a deeply entrenched line of jurisprudence would look pretty bad.”
— Carol Steiker ([26:34])

Procedural Hurdles: “Build Your Own Gas Chamber” ([27:13], [28:04])

• The burden now falls on inmates to propose detailed, feasible alternative methods of execution—an extraordinary and controversial requirement.
• This requirement originated with global challenges (Bayes v. Rees, Glossip v. Gross), but the Bucklew case extended it to individualized claims.

Notable Quote

“To say that the individual with a special medical condition is now going to have to research his condition and get experts... was really a new extension of these previous rulings.”
— Carol Steiker ([29:22])

Justice Infighting and Lingering Grievances

• Gorsuch’s Bucklew opinion and the dissents keep revisiting old wounds, particularly the Ray religious liberty case.
• Both sides are “picking at the scab,” replaying arguments from past disputes even when not immediately relevant ([30:05], [31:29]).

Race and Peremptory Strikes: Flowers v. Mississippi ([33:02], [33:33])

• Flowers, a Black man, was tried six times by the same prosecutor, who repeatedly struck Black jurors; the challenge is whether prosecutors’ motives can be inferred from past conduct over multiple trials.
• Justice Clarence Thomas broke his virtual silence at oral argument, questioning defense strikes of white jurors—a moment called out for whataboutism ([36:41]).

Notable Quotes

“The single black justice on the court is the one who’s least likely to see racial discrimination, even when it’s flagrant and egregious.”
— Carol Steiker ([37:36])

“Unless the misconduct is flagrant to the point of laughable, we can’t tag anyone for it. ...Race taints every single part of the death penalty process, not just the cases where people use green highlighter.”
— Dahlia Lithwick ([40:00])

• The Court tends to intervene only in the most egregious, individualized cases, rarely addressing systemic racial biases ([41:03]).

Notable Quote

“These cases… are in some way a sleight of hand away from where the much more endemic problems are.”
— Carol Steiker ([42:56])

Is the Death Penalty Dying? ([43:05])

• Executions and new death sentences have sharply declined since their peak in the 1990s.
• Yet Professor Steiker cautions that, while she hopes abolition is on the horizon, history shows the death penalty has resurged after downturns before.
• Without a categorical ruling (e.g., Supreme Court abolition), resurgence remains possible ([44:09]).

Notable Quote

“Absent something more categorical, like a constitutional ruling against it, there’s always the possibility of resurgence... what our fate will be kind of remains to be seen.”
— Carol Steiker ([44:46])

Memorable Moments & Timestamps

• Opening Overview and Stakes ([00:28]-[02:39]): Set-up for why these cases have become flashpoints.
• Religious Liberty and the Death Chamber ([03:42] Dominique Ray; [08:58] Patrick Murphy): Parallel cases, different outcomes—sparking debate about Court motives.
• Bucklew Case and Mechanics of Death ([11:12]-[16:22]): Deep dive into personalized method-of-execution claims and emotional temperature at the Court.
• Eighth Amendment Evolution ([22:54]): Explains “evolving standards of decency,” Anthony Kennedy’s legacy, and future possibilities.
• Procedural Oddities: Inmates Proposing Execution Methods ([27:13]-[28:04])
• Race and Jury Selection ([33:02]-[41:03]): Story of Flowers v. Mississippi, pattern of discrimination, Clarence Thomas’s rare intervention.
• Systemic vs. Individual Bias ([41:03]-[43:05])
• Decline of the Death Penalty and Uncertain Future ([43:05]-[45:30])

Episode Tone & Style

The tone is urgent, unsparing, and often incredulous, with both host and guest prizing clarity and candor around contentious, emotionally loaded legal questions. Both deploy evidence and historical sweep, with Steiker providing detailed legal explanations and Lithwick voicing the incredulity and outrage of many observers—particularly around race and procedural gamesmanship.

Notable Quotes with Timestamps

• “[The Court] has been actually willing to punch and scratch and pull hair in a series of big death penalty cases in recent weeks.” — Dahlia Lithwick ([00:51])
• “There's this imputation... that death penalty lawyers are just in bad faith, that they're just gaming the system.” — Dahlia Lithwick ([04:52])
• “The majority... conflates a broader anti death penalty movement with the individual lawyers litigating on behalf of individual clients...” — Carol Steiker ([05:42])
• “It's very hard to defend the death penalty, and they don't want to be in that position.” — Carol Steiker ([17:45])
• “The constitution does not guarantee a prisoner a painless death.” — Paraphrased from Justice Gorsuch’s Bucklew majority opinion ([18:40])
• “The single black justice on the court is the one who's least likely to see racial discrimination, even when it's flagrant and egregious.” — Carol Steiker ([37:36])
• “These cases... are in some way a sleight of hand away from where the much more endemic problems are.” — Carol Steiker ([42:56])
• “Absent something more categorical, like a constitutional ruling against it, there's always the possibility of resurgence.” — Carol Steiker ([44:46])

Conclusion

This episode of Amicus delivers a sweeping, searching, and at times searing look at the Supreme Court’s contemporary divides on the death penalty. With incisive, accessible explanations from Carol Steiker and probing questions from Dahlia Lithwick, listeners gain a rare window into the moral, legal, and procedural crosswinds shaping capital punishment in America today—from razor-sharp 5-4 splits to the deep racial and religious undercurrents still at play.