Justices Breyer and Ginsburg Would Hold the Death Penalty Unconstitutional

Today, the Supreme Court in an ongoing effort to micromanage state laws and procedures reviewed whether a certain chemical cocktail used by Oklahoma in executions is constitutional. In a 5-4 decision, the Court rejected the challenge to the use of the chemical midazolam.

What is especially of interest is a dissenting opinion in which two justices (Breyer and Ginsburg) stated that they would hold that the death penalty is unconstitutional as cruel and unusual punishment prohibited by the Eighth Amendment. Never mind that the Fifth Amendment provides that “[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life . . . without due process of law.” In other words, the Constitution specifically contemplates a punishment—the death penalty—that two justices would hold is inherently unconstitutional.

This is yet more evidence from the past few weeks that members of the Supreme Court are unabashedly engaged in policymaking rather than rendering legal judgment when presented with an actual case or controversy. While there are many good policy arguments for abolition of the death penalty that legislators should consider when revising state criminal statutes, this is a matter left for the Congress and the various state legislatures. The Constitution couldn’t be much clearer that the death penalty is permissible punishment. Nonetheless, members of the Supreme Court know better, would ignore the written document, and instead write their own opinions into law.