1 00:00:03,520 --> 00:00:07,040 Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every 2 00:00:07,120 --> 00:00:09,680 Speaker 1: day we bring you insight and analysis into the most 3 00:00:09,720 --> 00:00:12,200 Speaker 1: important legal news of the day. You can find more 4 00:00:12,240 --> 00:00:16,160 Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud 5 00:00:16,280 --> 00:00:20,680 Speaker 1: and on Bloomberg dot com slash podcasts. Controversy always surrounds 6 00:00:20,720 --> 00:00:23,800 Speaker 1: the death penalty in this country, especially among the justices 7 00:00:23,800 --> 00:00:25,759 Speaker 1: on the Supreme Court who have to rule on the 8 00:00:25,840 --> 00:00:29,360 Speaker 1: life and death issues. But rarely is that controversy on 9 00:00:29,360 --> 00:00:31,920 Speaker 1: the court as public as it was this week. The 10 00:00:32,040 --> 00:00:35,720 Speaker 1: justices were still litigating a death penalty case from February. 11 00:00:35,840 --> 00:00:38,879 Speaker 1: In their opinions. Joining me is Stephen Vladdock, professor at 12 00:00:38,920 --> 00:00:42,320 Speaker 1: the University of Texas School of Law. Steve, we often 13 00:00:42,320 --> 00:00:45,640 Speaker 1: see friction among the justices when there are last minute 14 00:00:45,720 --> 00:00:49,720 Speaker 1: stay requests or questions about the method of execution. Are 15 00:00:49,760 --> 00:00:53,360 Speaker 1: these latest death penalty cases any different, No, Jude. I 16 00:00:53,360 --> 00:00:55,600 Speaker 1: think they're a little bit different in one important respect, 17 00:00:55,600 --> 00:00:57,920 Speaker 1: which is that we no longer have Justice Kennedy, and 18 00:00:57,960 --> 00:01:00,120 Speaker 1: so I don't think that the views have changed. I 19 00:01:00,120 --> 00:01:02,480 Speaker 1: don't think that the ideologies have changed. I think it's 20 00:01:02,520 --> 00:01:05,640 Speaker 1: just that the moderating influence that for so long had 21 00:01:05,720 --> 00:01:09,160 Speaker 1: kept both wings of the Court in check in these 22 00:01:09,200 --> 00:01:11,880 Speaker 1: capital cases. Is now gone. And I think we've seen 23 00:01:11,920 --> 00:01:14,600 Speaker 1: that over the last six weeks in the Alabama case, 24 00:01:14,600 --> 00:01:16,600 Speaker 1: in the Texas case, and then in the Missouri case. 25 00:01:17,160 --> 00:01:20,480 Speaker 1: You wrote a column entitled it's Neil Gorsiche is Supreme 26 00:01:20,520 --> 00:01:23,640 Speaker 1: Court now not Anthony Kennedy's. I would have thought it 27 00:01:23,680 --> 00:01:27,040 Speaker 1: was John Roberts because he is the swing vote in 28 00:01:27,080 --> 00:01:31,880 Speaker 1: several cases right now. Why do you think it's Neil Gorsage. Yeah, 29 00:01:31,959 --> 00:01:34,960 Speaker 1: I didn't pick the title. Um. So the just of 30 00:01:35,000 --> 00:01:37,760 Speaker 1: the column was actually less about Justice Gorsage, um, and 31 00:01:37,840 --> 00:01:41,200 Speaker 1: more about Holman in Buckaloo, when the Court rejected this 32 00:01:41,319 --> 00:01:44,200 Speaker 1: challenge by this Missouri in made to a lethal injection 33 00:01:44,200 --> 00:01:47,400 Speaker 1: protocol that could potentially torture him. Um. That this is 34 00:01:47,440 --> 00:01:49,240 Speaker 1: really what the Court's going to look like without trinity. 35 00:01:49,760 --> 00:01:52,560 Speaker 1: Not necessarily cause as the result, but because you had 36 00:01:52,560 --> 00:01:56,280 Speaker 1: a majority opinion that basically paid no never mind to 37 00:01:56,400 --> 00:01:59,680 Speaker 1: the evolving standards of decency test that the Supreme Court had, 38 00:02:00,040 --> 00:02:02,800 Speaker 1: you know, for decades, relied upon the ethandemic context. And 39 00:02:02,840 --> 00:02:06,280 Speaker 1: you had all of the sniping over the last minute 40 00:02:06,280 --> 00:02:09,160 Speaker 1: maneuverings in the Alabama case from February that June. I 41 00:02:09,160 --> 00:02:11,560 Speaker 1: have a hard time thinking Justice Kennedy would have abided 42 00:02:11,919 --> 00:02:15,040 Speaker 1: that we're seeing you know, rancor and division from behind 43 00:02:15,080 --> 00:02:18,200 Speaker 1: the scenes showing up in published opinions. That's pretty unusual. 44 00:02:19,120 --> 00:02:22,320 Speaker 1: I find it very difficult to read these opinions dealing 45 00:02:22,320 --> 00:02:26,160 Speaker 1: with graphic descriptions of the methods of execution and clinical 46 00:02:26,160 --> 00:02:29,440 Speaker 1: analysis of the levels of pain. Is that really the 47 00:02:29,480 --> 00:02:33,200 Speaker 1: best way for the justices to decide these issues? I'm 48 00:02:33,240 --> 00:02:35,120 Speaker 1: sure that, like, if we had it to do over again, 49 00:02:35,120 --> 00:02:37,320 Speaker 1: the answer would be no. But this is the you know, 50 00:02:37,360 --> 00:02:40,640 Speaker 1: the doctrinal web that we've weaved, um is one in 51 00:02:40,639 --> 00:02:45,200 Speaker 1: which the death penalty is litigated in this awkward Austin 52 00:02:45,240 --> 00:02:48,680 Speaker 1: eleventh hour measure where we're talking about exactly what the 53 00:02:48,720 --> 00:02:51,840 Speaker 1: reactions are to certain drug cocktails, where we're talking about 54 00:02:52,000 --> 00:02:55,240 Speaker 1: what alternative methods are reasonably available. I don't think anyone, 55 00:02:55,440 --> 00:02:57,360 Speaker 1: you know, thinks this is the ideal way to approach 56 00:02:57,400 --> 00:03:00,000 Speaker 1: the subject. But so so long as the Supreme Court 57 00:03:00,040 --> 00:03:02,680 Speaker 1: pass a jorous prudence in which the death penalty is 58 00:03:02,680 --> 00:03:07,520 Speaker 1: substantively permissible but depends upon you know, rigid doctrines of 59 00:03:07,560 --> 00:03:10,040 Speaker 1: procedural fairness, I think this is what we're going for. 60 00:03:10,639 --> 00:03:13,920 Speaker 1: What was the reason given for allowing an execution to 61 00:03:13,960 --> 00:03:17,320 Speaker 1: go forward when a Muslim innate wanted an a mom 62 00:03:17,440 --> 00:03:20,560 Speaker 1: at his side in the execution chamber, but stopping an 63 00:03:20,560 --> 00:03:24,519 Speaker 1: execution when a Buddhist wanted his spiritual advisor at his side. 64 00:03:24,880 --> 00:03:27,200 Speaker 1: In Dundrous is Ready the Albamic case, the Supreme Court 65 00:03:27,240 --> 00:03:29,560 Speaker 1: didn't actually tell us their theory. We just had a 66 00:03:29,639 --> 00:03:33,080 Speaker 1: one sentence order from the justices lifting the stay entered 67 00:03:33,120 --> 00:03:35,960 Speaker 1: by the Federal Appeals Court in Atlanta. What we now 68 00:03:36,000 --> 00:03:39,840 Speaker 1: I think could take away from that decision, because of 69 00:03:39,880 --> 00:03:42,320 Speaker 1: the sniping the justices did with each other, is that 70 00:03:42,360 --> 00:03:45,280 Speaker 1: the majority of the justices, the five justices who voted 71 00:03:45,320 --> 00:03:47,920 Speaker 1: to lift this day, thought that dun had brought his 72 00:03:47,960 --> 00:03:50,840 Speaker 1: claim too late, that he had waited until too close 73 00:03:50,880 --> 00:03:54,640 Speaker 1: to his execution dates to actually raise the challenge. You know, June, 74 00:03:54,680 --> 00:03:58,280 Speaker 1: there's a really powerful story told by the Eleventh Circle 75 00:03:58,320 --> 00:04:00,960 Speaker 1: in that case about why that wasn't true. Justice Kagan, 76 00:04:01,040 --> 00:04:03,440 Speaker 1: in her Descent and Done versus Ray recount some of this, 77 00:04:03,880 --> 00:04:06,280 Speaker 1: and we see some of this in you know, both 78 00:04:06,400 --> 00:04:09,680 Speaker 1: the majority opinion in Buckaloo and footnote five, and in 79 00:04:09,800 --> 00:04:12,360 Speaker 1: Justice Soda Myer's descent in Buckaloo, where the court is 80 00:04:12,360 --> 00:04:15,240 Speaker 1: fighting over like how much we're supposed to blame death 81 00:04:15,320 --> 00:04:18,320 Speaker 1: row inmates when it's not clear to them what the 82 00:04:18,320 --> 00:04:21,560 Speaker 1: state execution protocol is. Some states don't even publish their 83 00:04:21,560 --> 00:04:24,720 Speaker 1: execution procedures. Sometimes you don't find out until two or 84 00:04:24,760 --> 00:04:27,360 Speaker 1: three days before the scheduled execution. You know, I think 85 00:04:27,400 --> 00:04:29,120 Speaker 1: we can all agree to in this is no way 86 00:04:29,160 --> 00:04:34,040 Speaker 1: to run this particular, crucially important process. The problem is 87 00:04:34,040 --> 00:04:35,480 Speaker 1: is that, you know, I think there's no agreement on 88 00:04:35,520 --> 00:04:38,520 Speaker 1: what the alternatives are. In the latest case and where 89 00:04:38,600 --> 00:04:42,320 Speaker 1: a Missourian mate claimed his execution would constitute cruel and 90 00:04:42,360 --> 00:04:46,480 Speaker 1: unusual punishment because of a medical condition he had. Neil Cuciall, 91 00:04:46,560 --> 00:04:50,000 Speaker 1: the former acting Solicitor General under Obama, said, in a 92 00:04:50,040 --> 00:04:52,840 Speaker 1: hundred years law students will read this decision in the 93 00:04:52,920 --> 00:04:57,560 Speaker 1: same category as notorious Sprume court decisions like Karamatsu and 94 00:04:57,640 --> 00:05:01,760 Speaker 1: dread Scott. Do you think that the case um, I 95 00:05:01,800 --> 00:05:04,000 Speaker 1: think it's possible, June. I mean, I think, you know, 96 00:05:04,000 --> 00:05:06,120 Speaker 1: it's hard to know where we're going to be as 97 00:05:06,120 --> 00:05:07,720 Speaker 1: a society in a hundred years when it comes to 98 00:05:07,720 --> 00:05:10,440 Speaker 1: the death penalty. I think there's no question that, you know, 99 00:05:10,480 --> 00:05:12,080 Speaker 1: the death penalty is one of those things that gets 100 00:05:12,080 --> 00:05:14,919 Speaker 1: everybody's dander up, whether on you know, in favor of 101 00:05:15,000 --> 00:05:17,359 Speaker 1: or against. And I do think that there's reason to 102 00:05:17,400 --> 00:05:21,000 Speaker 1: be really worried about a decision in a case where 103 00:05:21,240 --> 00:05:24,000 Speaker 1: you know, there's a pretty substantial risk that this inmate, 104 00:05:24,080 --> 00:05:26,680 Speaker 1: you know, Russell bucklew Um, who no one is saving, 105 00:05:26,760 --> 00:05:28,360 Speaker 1: hey didn't commit his crimes and no one is saving 106 00:05:28,400 --> 00:05:31,200 Speaker 1: he shouldn't be punished, might very well end up stuffer, 107 00:05:31,400 --> 00:05:33,920 Speaker 1: you know, and excruciating death by choking on his blood. 108 00:05:34,279 --> 00:05:36,839 Speaker 1: If we're gonna have a death penalty that has to 109 00:05:36,839 --> 00:05:40,400 Speaker 1: comport with the constitution, presumably we have to take that seriously. 110 00:05:40,480 --> 00:05:42,520 Speaker 1: Otherwise we might as well just you know, bring back 111 00:05:42,560 --> 00:05:45,039 Speaker 1: the firing squad. And I think that's the mess that 112 00:05:45,080 --> 00:05:47,719 Speaker 1: these cases are raising, and that's what the justices are 113 00:05:47,760 --> 00:05:49,800 Speaker 1: all fighting over. And June to go back to, you know, 114 00:05:49,839 --> 00:05:51,919 Speaker 1: the peace side of the polico. This is where I 115 00:05:51,960 --> 00:05:55,640 Speaker 1: think we really are seeing and feeling the absence of 116 00:05:55,680 --> 00:05:58,239 Speaker 1: justice Kennedy, the one justice who I think was both 117 00:05:58,720 --> 00:06:02,200 Speaker 1: thoroughly committed to the death penalty but also to ensure 118 00:06:02,279 --> 00:06:06,120 Speaker 1: him that there were no constitutional affirmities arising from its administration. 119 00:06:06,680 --> 00:06:09,680 Speaker 1: What I found really interesting in your article was that 120 00:06:09,960 --> 00:06:15,800 Speaker 1: you explained how the other justices needed his analytical support 121 00:06:15,880 --> 00:06:19,120 Speaker 1: in order to form a majority, Explain what goes on 122 00:06:19,200 --> 00:06:23,479 Speaker 1: behind the scenes and how his presence affected that. Yeah, 123 00:06:23,520 --> 00:06:25,719 Speaker 1: I mean, you know, there's always two different votes when 124 00:06:25,720 --> 00:06:28,679 Speaker 1: you have a big Supreme Court case. There's the question 125 00:06:28,720 --> 00:06:30,479 Speaker 1: of what the manage would be. So are we reverse 126 00:06:30,560 --> 00:06:33,520 Speaker 1: him the decision below, are we affirming, are we vacating? 127 00:06:33,880 --> 00:06:36,719 Speaker 1: And then there's the rationale. And even when Justice Kennedy 128 00:06:36,760 --> 00:06:39,880 Speaker 1: was on the same side as either the conservative block 129 00:06:40,000 --> 00:06:43,200 Speaker 1: or the liberal block, it was often for less aggressive reasons. 130 00:06:43,240 --> 00:06:45,760 Speaker 1: That is to say, like he would often insist upon 131 00:06:46,240 --> 00:06:49,320 Speaker 1: a rationale that was closer to his views than perhaps 132 00:06:49,360 --> 00:06:53,400 Speaker 1: to either Justice Thomas or Justice Kagan. Sometimes you know, 133 00:06:53,440 --> 00:06:55,360 Speaker 1: he couldn't pull that off, and so we would have 134 00:06:55,400 --> 00:06:59,000 Speaker 1: these fractured opinions where you get afford Justice plurality and 135 00:06:59,000 --> 00:07:01,919 Speaker 1: a Kennedy concurrent. But in the death penalty context, I 136 00:07:01,920 --> 00:07:04,400 Speaker 1: think we saw a lot of cases where we had 137 00:07:04,720 --> 00:07:09,520 Speaker 1: relatively narrow opinions that were narrow entirely because either Kennedy 138 00:07:09,560 --> 00:07:13,080 Speaker 1: wrote them or Kennedy joined them. Do you expect to 139 00:07:13,080 --> 00:07:16,120 Speaker 1: see the Court moving more to the right on death 140 00:07:16,160 --> 00:07:19,080 Speaker 1: penalty issues in the future. I think, you know, Russell 141 00:07:19,080 --> 00:07:21,680 Speaker 1: bucklew Um is a harbinger of that unity. I think 142 00:07:21,840 --> 00:07:24,280 Speaker 1: one of the places where there's a real difference between 143 00:07:24,400 --> 00:07:27,480 Speaker 1: you know, Justice Kavanaugh and Justice Kennedy is the death penalty. 144 00:07:27,560 --> 00:07:29,520 Speaker 1: Not because, as I said, Justice Kenedy was ever opposed 145 00:07:29,560 --> 00:07:32,080 Speaker 1: to the death penalty, but you know, Kennedy I think 146 00:07:32,280 --> 00:07:36,520 Speaker 1: was far more circumspect about these cases than it certainly 147 00:07:36,640 --> 00:07:38,520 Speaker 1: appears Justice Kavanat is going to be. And I think 148 00:07:38,560 --> 00:07:41,640 Speaker 1: that's going to have implications far beyond you know, the 149 00:07:41,680 --> 00:07:44,240 Speaker 1: specific dispute we sell on over methods of execution. I 150 00:07:44,280 --> 00:07:47,080 Speaker 1: think it's gonna have major implications for you know, other 151 00:07:47,120 --> 00:07:49,480 Speaker 1: aspects of the definitely going forward as well. Thank you 152 00:07:49,520 --> 00:07:52,480 Speaker 1: so much, Steve for your insights that Stephen Vladik He 153 00:07:52,560 --> 00:07:55,520 Speaker 1: is professor at the University of Texas School of Law. 154 00:07:58,600 --> 00:08:01,560 Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can 155 00:08:01,600 --> 00:08:05,320 Speaker 1: subscribe and listen to the show on Apple Podcasts, SoundCloud, 156 00:08:05,400 --> 00:08:09,280 Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brasso. 157 00:08:09,760 --> 00:08:11,080 Speaker 1: This is Bloomberg