Today is the last day for the current term of the US Supreme Court and three opinions are still to be issued. Although the extremely high profile ones of Obamacare and same-sex marriage are done, I am particularly interested in two of the remaining ones, dealing as they do with gerrymandering and the death penalty. (The third remaining opinion to be issued is Michigan v. Environmental Protection Agency as to “Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities” and pits the power plant industry against the EPA.)

These two cases have not received much public attention because they don’t deal with hot-button political issues. One case Arizona State Legislature v. Arizona Independent Redistricting Commission deals with “whether the Elections Clause of the United States Constitution and 2 U. S. C. § 2a(c) permit Arizona’s use of a commission to adopt congressional districts; and (2) whether the Arizona Legislature has standing to bring this suit.”

The issue concerns gerrymandering, where the party in power in the state legislature carves up electoral districts in extreme ways in order to maximize the number of seats they win. They do this by creating districts in which the opposing party’s supporters are squeezed into as few districts as possible so that they win by huge majorities in those areas and lose in all the others. To prevent this, some states have shifted the redistricting power to independent or quasi-independent commissions. This happened in Arizona but the legislature sued to get the power back.

Amy Howe explains the background.

Arizona voters were fed up. After each census, states have to draw new boundaries to elect members of the House of Representatives in Washington. Until 2000, the state legislature took on this job, as it does in many other states. But voters weren’t happy with the results: in Arizona, as elsewhere, it was common for the political party that controlled the state legislature to use its power to its advantage in redistricting, by drawing districts to maximize the opportunities for its members to win election and to ensure that, once in office, those seats were safe. So in 2000, Arizona voters passed an amendment to the state constitution that would turn control of redistricting over to an independent commission. Three years ago, though, the state legislature filed a lawsuit in federal court, challenging the voters’ transfer of redistricting power to the commission.

The Elections Clause of the U.S. Constitution provides that the “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.” In Arizona, the legislature and members of the public can make recommendations to the redistricting commission, but the commission doesn’t have to do anything more than “consider” those recommendations. The heart of the lawsuit now before the Court, then, is the Arizona legislature’s complaint that, by depriving it of any substantive role in the redistricting process, the state’s creation of the independent commission violates the Constitution.

The legislature lost the case in the three-judge statutory court and the appeal went straight to the US Supreme Court. The legislature seemed to get a sympathetic hearing from enough of the Supreme Court justices during the oral arguments that there seems to be a real danger that they might give the redistricting power back to the state legislature, which would be a bad thing not just for Arizona but for other states including California that have chosen to use such independent commissions.

The second case is Glossip v. Gross and deals with the death penalty where the issue is whether the method of lethal injection that is currently being used creates such pain and suffering before death that it constitutes cruel and unusual punishment and is thus unconstitutional. Twenty one death row inmates in Oklahoma filed for a stay of execution until the court could examine the validity of the mode of execution but that was denied by the district court and the denial was upheld by the Tenth Circuit Court of Appeals.

As Amy Howe describes, the oral arguments before the US Supreme Court did not seem to go well for the inmates.

First, there was hanging. Then there was the electric chair, or in some places the gas chamber and the firing squad. More recently, many states and the federal government have relied on lethal injection – administering a fatal dose of drugs – to carry out executions. The switch to lethal injections came in no small part because they were regarded as more humane, for both the condemned inmate and the witnesses to the execution: the prisoner could simply drift off, as if he were sleeping.

In 2008, the Supreme Court rejected an argument that Kentucky’s lethal injection procedures violated the Eighth Amendment, which prohibits “cruel and unusual punishment,” because of the possibility that the inmate could suffer serious pain if the procedures were not followed properly. But that didn’t end the debate, particularly after several well-publicized botched executions. And so yesterday the Court heard oral arguments in a new challenge, this time to Oklahoma’s lethal injection procedures. After over an hour of often-heated debate, the Court’s more conservative Justices seemed like they could be poised to rule once again in favor of the state, in the hope of ending what they regard as a “guerrilla war” against the death penalty itself.
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First, some background may be useful. Most lethal injection procedures (known as a “protocol”) use a series of three drugs. The first drug is intended to make the inmate unconscious, so that he does not feel any pain. The second drug paralyzes him, stopping his breathing; the third and final drug, potassium chloride, stops his heart. States had generally used a drug called sodium thiopental as the first step in the process, but it is no longer sold for use in executions; for the same reason, the next drug to which states turned – pentobarbital – is either unavailable or extremely difficult to find. That scarcity led Oklahoma to rely on a third drug, known as midazolam. But midazolam is a sedative used to treat anxiety, not an anesthetic, and that difference is at the heart of the current challenge before the Court: the plaintiffs in the case, a group of death row inmates awaiting execution in Oklahoma, argue that it cannot reliably make the inmate unconscious before he receives the second and third drugs.

The death penalty is an abomination. While the US has evolved rapidly on the issue of same-sex marriage resulting in the striking victory last week, it has not done so on the death penalty, and I fear that there will be at least a 5-4 vote against the death row inmates.