I long ago concluded that the reason conservatives in the law and the judiciary are so enamored of the death penalty is that it is an essential tool of any despotic government to be used against any opponents, as a means of terrorizing any subjugated groups and as a general means of degrading the meaning of human life, essential in their program of turning people from beings possessing inalienable rights to objects which are subject to disposal. In that, the proponents of state murder are generalizing the attitudes that allow some people to commit illegal murders as prerogatives of the state and the judicial system, and judges. It isn't any accident that the very same Supreme Court Justices who voted for the state of Oklahoma in the appalling, morally bankrupt Glossip v. Gross are the same justices who have been attacking democracy and self-government in favor of corporations, this is all part of a general program of destroying both a democratic government and a decent society of the only type which can sustain a democracy.
That it was the coldest blooded of the casually cruel Republicans on the bench, Samuel Alito, who issued the ruling is not shocking. He is never slow to do something like that, an intellectual Luca Brasi. This case is particularly telling of how twisted his mind is, especially in light of his dissent on the United States vs. Stevens case, in which I agreed with him that the filmed torture and killing of animals in porn could be banned, against all eight of the other justices. It was about the one and only case that I ever agreed with him on anything, though with his holding that human beings can be killed without any regard for torture or suffering leaves me to consider that his goal wasn't animal welfare.
The current ruling, like all of Alitos, tries to destroy past progress towards a more decent government,
Gossip v. Gross is a crushing blow to opponents of the death penalty. The narrow issue in this case is whether a particular drug that Oklahoma wants to use in executions sufficiently dulls inmates pain that the intense suffering caused by the remainder of the state’s lethal drug cocktail does not amount to cruel and unusual punishment. Yet the Court’s 5-4 decision goes well beyond this narrow question. It effectively enlists death row inmates’ attorneys to become agents of their clients’ demise. And it elevates the death penalty to a kind of super-legal status that renders it impervious to many constitutional challenges.
Glossip opens with the eight most frightening words a liberal will ever read: “JUSTICE ALITO delivered the opinion of the Court.” In characteristic fashion, Alito uses his opinion to pry open gaps in the Court’s precedents that lead to extraordinarily conservative outcomes. By the time he is done, some of the most important victories for death penalty opponents in the last several years have been transformed into defeats.
At oral arguments, Alito was openly contemptuous of the work of death penalty opponents — many of whom work for companies that manufacture drugs that various states would like to use in their execution protocols. The reason why Oklahoma was in court seeking the ability to use a painkiller of questionable reliability in its executions is because many drug companies have refused to sell their products to states if those states intend to use them to kill a human being. During arguments in this case, Alito labeled this effort a “guerrilla war against the death penalty.”
As a legal matter, it is not at all clear why the actions of drug companies have any relevance whatsoever to a constitutional challenge to the death penalty. Drug companies are private actors, not government actors, so they are free to sell or not to sell whatever they choose so long as they comply with the law. Alito’s opinion, however, effectively punishes these drug companies for their opposition to the death penalty by holding that, should the companies continue to make their more reliable drug unavailable, then executions will just move forward with less reliable painkillers.
This is so extraordinary, especially given that Alito has been, almost uniformly, a supporter of so called "corporate rights", here, in order that executions are carried out, he tries to force them into becoming part of the government's killing team, even if they would rather not. It rewards the LEAST moral of businessmen, it creates a race to the moral bottom when any company which would not aid the effort to kill.
The key paragraph in Alito’s opinion is a declaration that, no matter what happens, there must always be a way to execute inmates:
"Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether."
It's no wonder that Roberts assigned this decision to the cold-blooded Alito. The other natural choice to issue such a morally depraved ruling, Scalia, couldn't be counted on to not make a joke on the way to delivering as bad if not a worse decision.
I will point out that all of the Justices in this ruling are in the most basic violation of Catholic teachings on the death penalty in this ruling, not to mention in the whole line of death penalty cases they have heard, though I don't suppose any of them would be turned away from communion at the next Red Mass they attend or will run into any bishops pressuring Catholic universities from barring them from speaking. At least not until the current holders of most of those positions are replaced, one hopes as soon as possible, with men or more integrity and less bald support for Republicans.
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