Supreme Court Will Be Issue in 2016

By Daily Editorials

July 14, 2015 4 min read

Capital punishment isn't going anywhere, as long as the present incarnation of the Supreme Court is on the bench.

That will make the court — as if it weren't already the case after the Obamacare and same-sex marriage decisions — a top issue in the 2016 presidential race that essentially is underway.

The court in a 5-4 decision — no surprise — ruled in an Oklahoma case that the use of a sedative, midazolam, in executions doesn't violate the Eighth Amendment's ban on cruel and unusual punishment.

Several states are scrambling for the means to execute inmates, because the drugs that have been used in the past are no longer available. International drug companies now refuse to allow their products to be used for lethal injections.

Midazolam has been used in 13 executions in Arizona, Florida, Ohio and Oklahoma to render inmates unconscious before drugs to paralyze their heart and breathing are injected. Those challenging the sedative's use claim it is ineffective at doing that, citing three particularly gruesome executions in the last year that took anywhere from a half-hour to two hours to kill those inmates.

Justice Samuel Alito, writing for the majority, said the Eighth Amendment doesn't require pain-free executions, and to do so would mean abolition of the death penalty.

A feisty dissent by Justice Steven Breyer, joined by Justice Ruth Bader Ginsburg, advocated just that, saying it's "highly likely" capital punishment violates the Eighth Amendment.

That hasn't been the Supreme Court's operative opinion since 1976, however, when in Gregg v. Georgia it reversed its decision of four years earlier tossing out the death penalty.

There are five solid votes on the court to maintain that precedent. So capital punishment opponents who spoke of "an opening" toward ending executions based on Breyer's and Ginsburg's positions, are thinking wishfully. Two justices aren't a majority.

The only true way of getting "an opening" is to change the makeup of the court. Five of its members are past the traditional retirement age, including three in their late 70s and Ginsburg topping the list at 82.

In one sense that's irrelevant, given the justices' lifetime appointments. Realistically, though, the next president — Democrat or Republican, liberal or conservative — probably will get to nominate some new members.

For a body whose actions constantly ride along microscopic, scalpel-edge margins, even the tiniest shift leftward or rightward could produce substantial changes in this country.

So prepare to see the Supreme Court in lots of ads between now and November 2016. Its justices don't have to face voters, but the ramifications of their actions can't be disconnected from the political process.

People gripe about the court overstepping its bounds. Advocates on all sides of issues understand its power and significance.

REPRINTED FROM THE PANAMA CITY NEWS HERALD

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