Strong Baze scholarly bloggy insights

Writing at The Volokh Conspiracy, Orin Kerr has this terrific post about the Baze lethal injection case to be argued in the Supreme Court next week.  Here is an excerpt:

I think that Baze is an unusual Supreme Court case for three different but related reasons: legal, factual, and strategic.

First, as a matter of law, there is relatively little legal precedent on point, and the precedent that exists can be interpreted in different ways.  The Court has said that the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain," Whitley v. Albers, 475 U.S. 312, 319 (1986).  But how do you measure what is necessary — necessary compared to what alternative?

Second, because everyone agrees that the current method of execution is painless if the procedure is carried out without error, the litigation is largely over the somewhat novel question of risk of error — how much of a risk of error is too much for the Constitution, and how can judges tell how risky a particular proceeding may be?

Third, strategically, I think it's fair to assume that counsel for the petitioners have goals pretty different from what they're forced to argue.  Presumably counsel's the goal is to end executions, not minimize the chances of pain during them.

Orin has many other strong insights throughout his extended post.  (Indeed, I'd call the post great scholarship if Orin wasn't on record arguing "that the blogging format is not well-suited to advance scholarship.")  Orin ends with this prediction:

What's going to happen in the case is anyone's guess.  If I had to guess — and this is really just a wild guess — I would guess that (a) there will be no one majority opinion, but (b) the controlling opinion will allow this particular execution based on the details of the record and give lots of guidance to push other states to improve their practices.  That won't really answer the constitutional question, but it will kick the ball down the road for a few years.

Though I share Orin's instinct that Baze is a hard case for a lot of Justices for a lot of reasons, I predict (or at least hope) that we will get a majority opinion in some form.  The Justices have been dodging the hard issues here for a number of years, and the Hill decision from 2006 (which I analyzed here) reflected the Justices (last?) attempt to urge states and lower courts work this out without a clear constitutional standard.  But jurisprudential vagueness has only produced more litigation and disparate outcomes over the last two years. I suspect that a majority of Justices recognize the need for a firm legal standard, and that Chief Justice Roberts (and/or Justice Stevens) will work especially hard to get five votes for some defined legal standard that lower courts can apply.

That said, even with a defined legal standard established by a majority opinion in Baze, I suspect there will be enough vagueness in the outcome and the standard to ensure, as Orin suggests, additional lower court litigation over specific execution protocols in different states. 

Some recent related posts:

• Terrific Baze-ian analysis of lethal injection issues
• How Ohio executes
• Are botched executions inevitable?
• Tennessee state legislator calling for one-drug lethal injection protocol
• SCOTUS keeps execution moratorium in place
• Does hyperbole help or hurt in lethal injection debate?
• Finding Bickel Gold in a Hill of Beans (my article about last lethal injection case)