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Saturday, February 09, 2013

What is the Holding of Baze v. Rees?

One of the skills I try to get my students to practice in Criminal Procedure and my death penalty seminar is to extract the holdings of Supreme Court cases where there is no majority opinion.  The Supreme Court’s Marks rule says:  “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”  But sometimes Marks is difficult to apply; Baze v. Rees may be a case in point.  In Baze, the Supreme Court upheld the three-drug lethal injection protocol in use in most death penalty states against a challenge that the protocol implicated an unacceptable risk of severe pain if not performed properly.  In brief, the protocol calls for the administration of sodium thiopental, which should render the condemned unconscious; then pancuronium bromide, a paralytic that prevents spasms and also stops respiration; and finally potassium chloride, which stops the heart and causes death.  The potential danger is that if the first drug is not administered properly, the inmate will not be fully unconscious and will suffer greatly as the pancuronium bromide begins to asphyxiate him and the potassium chloride courses through his veins, causing an intense burning sensation until it finally stops the heart.

Chief Justice Roberts’ opinion, joined by Justices Kennedy and Alito, determined that a method of execution violates the Constitution only if it creates “a substantial risk of serious harm,” and only then if there is an alternative that “significantly reduces” that risk and is both “feasible” and “readily implemented.”  Justice Stevens, concurring in the judgment, agreed with this standard, and agreed that the petitioners did not meet it, but cautioned that a case with “a more complete record” on a proffered alternative method could lead to a different result.  Justice Thomas, joined by Justice Scalia, concurred in the judgment on the ground that the Cruel and Unusual Punishments Clause is not concerned at all with the mere risk of pain.  Rather, according to them, the Clause forbids only the deliberate infliction of pain.  Justice Breyer’s concurrence in the judgment was similar to that of Justice Stevens’ in that he focused on the petitioners’ failure to make a sufficient record regarding a proffered alternative method of execution, but he agreed with the more flexible “untoward risk” standard set forth in Justice Ginsburg’s dissent.  That dissent, joined by Justice Souter, argued that the Constitution is violated by an “untoward, readily avoidable risk of inflicting severe and unnecessary pain.”  That standard is a flexible one whereby even a less than substantial risk of pain could constitute an Eighth Amendment violation if the pain itself were severe enough and the means of avoiding it sufficiently easy.  She would have remanded for a determination based on this standard.

The issue of which opinion in Baze represents the holding is critically important.  At the time of the Baze litigation, the alternative proposed by the petitioners, a single large dose of sodium thiopental, had never been tested.  Today, however, at least five States have adopted the single-drug protocol and it has been used over a dozen times, apparently with no adverse results.  But without more proof that a maladministration of the first drug of a three-drug protocol is a substantial possibility, a challenge to the three-drug protocol should meet the same fate as in Baze if Chief Justice Roberts’ opinion were controlling.  On the other hand, a challenge today might be successful if something more akin to Justice Stevens’ and Justice Breyer’s opinions were deemed controlling, as they seemed to rely more upon the absence in the record of a legitimate, tested alternative.

At first blush, the Chief Justice’s plurality opinion appears to be the controlling opinion pursuant to the Marks rule:  since Justices Thomas and Scalia would find that the Eighth Amendment is not violated unless the State deliberately inflicts pain during an execution, Chief Justice Roberts’ opinion supplies the third, fourth, and fifth votes for affirmance on the narrowest grounds:  risk of pain can indeed violate the Eighth Amendment but only if that risk reaches some threshold of substantiality.

But consider what one Justice said during oral argument in a different death penalty case, Kennedy v. Louisiana, ironically on the same day Baze was decided.  The issue in Kennedy was whether the Eighth Amendment categorically bars the death penalty for child rapists.  A question arose during argument as to which opinion in Coker v. Georgia represented the holding.  A plurality of four Justices in Coker had written that the death penalty is categorically barred for rape of an adult woman.  Justices Brennan and Marshall each concurred in the judgment based on their view that the death penalty was always unconstitutional.  And Justice Powell concurred in the judgment in part and dissented in part based on the view that the death penalty for rape was barred in this case but he would not rule out the death penalty for particularly egregious rapes.

During the Kennedy argument, Jeffrey Fisher, counsel for Kennedy, characterized the plurality opinion in Coker in controlling:  it was narrower than the Brennan/Marshall view that the death penalty is always unconstitutional so it represented the narrowest grounds for reversal.  But one Justice chimed in with an interesting observation:  “That’s [a] strange way of making a majority, isn't it? * * *  Two people who think even the death penalty for murder is no good, they're going to form the majority of people who consider whether a lawful death penalty can be imposed for rape.  I think at least in those circumstances, you have to discount the people who would not allow the death penalty under any circumstances for any crime.”  Prof. Fisher objected:  “Well, I'm not aware of any wrinkle in this Court's jurisprudence that says that if a Justice is too far out of the mainstream that their vote is discounted.”  The Justice persisted that such a Justice “is not considering the issue that is before the Court. The issue before the Court is whether . . . a permissible death penalty can be imposed for this crime.  These parties say there's no such thing as a permissible death penalty.  I mean . . . if that wrinkle isn't there, we should iron it in pretty quickly.”

If this reasoning were to prevail, the impact on Baze would be considerable.  On this line of logic, one could arguably ignore Justice Thomas’ separate opinion in Baze, joined by Justice Scalia.  Since “[t]he issue before the Court is whether” the risk implicated by the three-drug protocol is too high; and Justices Thomas and Justice Scalia “say there’s no such thing as a” risk that’s too high for Eighth Amendment purposes; then “you have to discount the people who would not” look at any risk of severe pain as being too high to violate the Eighth Amendment.  Indeed, of all the separate opinions in Baze, Justice Thomas’ is the most “far out of the mainstream.”  The dissent is actually closer in character to the plurality opinion, since both recognize the factors that must be taken into account in determining whether a risk of pain during an execution is too high.  They simply disagree on how to weigh those factors.

Discounting the views of Justices Thomas and Scalia, Justice Breyer’s opinion actually becomes the controlling one for purposes of the Marks rule.  I should say that this does not seem to me to be a good way of approaching the Marks rule, for whether a Justice is “not considering the issue that is before the Court” seems largely dependant on how one frames “the issue that is before the Court.”  I should also say that the plurality opinion in Baze appears to me to be the most attractive normatively.  Be that as it may, if the approach to Marks discussed at the oral argument in Kennedy has the apparent support of a sitting Justice, perhaps those challenging execution protocols should sit up and take notice.

And the Justice who proposed this interesting way of applying the Marks rule?  Justice Scalia, of course.

Posted by Michael J.Z. Mannheimer on February 9, 2013 at 03:32 PM in Constitutional thoughts | Permalink


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I think the Chief's opinion in Baze v. Rees is pretty clearly the controlling opinion, because that wrinkle isn't there and it's not clear how it would apply to Baze if it were. More broadly, adding that wrinkle strikes me as a bad idea, as it's essentially a game of ex post "gotcha." Going forward, if Justices knew it was there, they would just write their opinions outside the question by adding a caveat that if they limited themselves to the question under review, they would agree with the narrower opinion on their side. But the effective holding of the case shouldn't hinge on that kind of game.

Posted by: Orin Kerr | Feb 9, 2013 5:01:06 PM

(1) Marks is terrible. It takes a majority to make law. If the only thing a majority agrees on is a judgment, then you've made law for one case only.

(2) Quietly, a majority invoked and applied the Chief's Baze standard. So I'd feel comfortable saying that's probably law now. See http://www.supremecourt.gov/orders/courtorders/102610zr.pdf

Posted by: anon | Feb 9, 2013 8:19:21 PM

I have used that exact statement from Justice Scalia in Kennedy oral argument to argue that exact point in Baze. Four additional things, I believe matter that you don't mention. First, Brewer v. Landrigan (SCOTUS) used some different language and thus arguably is a basis to conclude there is an alternative SCOTUS standard that can be satisfied in limited circumstances. Second, one can argue the plurality adopted a different standard for one challenging the 3 drug protocol v. one just arguing for 1 drug protocol. Interestingly, the section of Baze that addresses the one 1 drug protocol does not use the same phrases from the standard for the three drug protocol. So, one could say that means a different standard. Also, the court had already rejected the challenge to the 3 drug protocol before the court discussed the 1 drug option. The only way I see to argue that this does not mean a different standard when just raising one drug would be to conclude the entire section of alleged plurality opinion on 1 drug is dicta. Third, Baze can't stand for proposition that 3 drug remains constitutional now since the presumptions made in Baze have been shown to be false and one drug now used when hadn't been then. I have convinced a judge to agree with that in a significant ruling in KY. Fourth, one can argue that only need to show alternative part if affirmatively raise that should go to one drug. Otherwise just have to show the harm. One reason I say this is that court held that injecting pancuronium bromide and potassium chloride in a person who is able to feel pain would violate 8th amend. So, if one makes the requisite showing that procedure would result in the necessary risk of pain, but fail to show a viable alternative, if the alternative was part of required standard the court be allowing an execution procedure it stated violates 8th amend. -- David Barron (counsel of record in Baze v. Rees, not the David Barron who teaches law at Harvard).

Posted by: David Barron | Feb 9, 2013 9:08:08 PM

Anon, In Brewer v. Landrigan, the court also mentioned no evidence that drug unlawfully obtained. That is either useless dicta or means that evidence of unlawful obtainment would establish a constitutional violation independent of any showing Baze might otherwise require.

Posted by: David Barron | Feb 9, 2013 9:11:52 PM

Also, a court ruled with regard to a motion I filed to reopen Baze v. Rees before the trial court that the "Supreme Court's affirmation of the three-drug protocol was contingent on the absence of any proven alternative method of lethal injection." The judge then went on to rule that "[w]hether the availability of the one-drug alternative renders the three-drug protocol unconstitutional under the Eighth Amendment is a question that has yet to be decided." And the court ruled that there is not "well-established alternatives" to the three drug cocktail.The court further ruled that "Baze simply does not address the issue of whether the three drug protocol can withstand constitutional scrutiny in the context of a proven alternative that carries less risk of a cruelly inhumane outcome."

Posted by: David Barron | Feb 9, 2013 9:25:09 PM


Good to hear from you. I'm glad you've already thought of the argument. You are already one step ahead of me but at least I feel some vindication for bringing it up (for those who might suspect that David is my shill, let me disclose that I know him, am "Facebook friends" with him, and he is teaching as an adjunct at my school this semester, but we have never discussed this particular issue before).

As for Brewer v. Landrigan, I'm not sure how much we can rely on an order vacating a TRO, not a full-blown opinion of the Court after briefing and argument, though I understand that as a litigant, you'll take what you can get. The fact that the clerk who wrote it messed up and cited Baze without indicating that s/he was citing only a plurality opinion is perhaps indicative of how much weight we can give Landrigan.

I appreciate the fact that you have obviously parsed the Baze opinion with more care than I have had a chance to do. But I'm also not sure how you separate out the claim that (a) the three-drug protocol is constitutionally forbidden and (b) the one-drug protocol is constitutionally required -- they seem like two sides of the same coin. As I see it, one can't make claim (b) without also making claim (a) -- no particular method of execution can be constitutionally required unless the one that is currently being used is constitutionally forbidden, right? Hypothetically, one could make claim (a) without also making claim (b) but that is not how the lethal injection litigation has been handled, or least how it has evolved. The claim is that the three-drug protocol is constitutionally forbidden at least in part because of the availability of a better alternative. It seems like seven of the Justices in Baze agreed that the availability of an alternative was critical to the calculus.

Posted by: Michael J.Z. Mannheimer | Feb 9, 2013 9:32:48 PM

I'm sure that everyone involved in Brewer knew that Baze was a plurality opinion. The fact that there isn't the same time and effort for bluebooking with an impending execution (if I recall correctly, the order issued quite late and possibly even after the scheduled execution time) hardly shows anything.

Also, the Brewer move was pretty striking. The Court routinely denies stays of execution. Vacating a TRO/stay is much more unusual, and the context suggests that the majority felt pretty strongly about the issue.

Posted by: anon | Feb 9, 2013 10:17:59 PM


Unfortunately, SCOTUS vacating an injunction/stay of execution granted on lethal injection grounds is not as uncommon as one might ordinarily think. SCOTUS vacated two lethal injection injunctions I obtained in 2004, both of which had been upheld by the 4th circuit. It seems to be the one area where the court has often vacated injunctions/stays of execution.

Posted by: David Barron | Feb 9, 2013 10:51:59 PM

I think one could argue that two different standards apply: 1) when you straight-up argue the unconstitutionality of what currently being done without presenting an alternative; and, 2) a standard that applies when you present an alternative. It makes sense for the latter to be a more onerous standard to satisfy. The Court did say: "comparative efficacy of a one-drug method of execution is not so well established that Kentucky’s failure to adopt it constitutes a violation of the Eighth Amendment." This begs the question of what happens if its comparative efficacy is well-established, as it is today. Does that mean something on its own, or must the level of risk of pain associated with continued use of other means of lethal injection must also be shown?

Posted by: David Barron | Feb 9, 2013 10:59:08 PM

Anon writes: "Marks is terrible. It takes a majority to make law. If the only thing a majority agrees on is a judgment, then you've made law for one case only."

I disagree. First, any rule as to "what makes law" on a multi-member court is a question of choice, not logic. For example, you could have a rule that an opinion requires 6 votes, or 7, or unanimity, in order for the decision to be precedential: There is nothing magic about a majority.

Second, Marks makes sense for a court with a "majority makes precedent" rule because it captures an important reality of decisionmaking on a multi-member court. If a majority opinion were required to make a decision precedential, then Justices in favor of the winning side in a case with no majority opinion would join the narrowest opinion on their side to force a majority opinion and therefore establish a precedential rule. Marks makes that same narrow opinion the controlling opinion while freeing Justices to write separately. Put another way, Marks lets Justices speak their mind rather than force them to join an opinion they dislike only because it is better than no precedent at all.

Posted by: Orin Kerr | Feb 10, 2013 12:15:25 AM

Hi Orin,

I agree that law by majority if a function of choice; I just think it's the choice that we've in fact made. This goes way back in the common law and the treatment of seriatim opinions. You might even say it's an assumption built into the appropriate understanding of the "Judicial Power" in Article III.

I might not have been clear about, or you may have misunderstood, one small bit. I don't think it takes a majority *opinion* to make law on any given point. Seriatim is fine. It just takes a majority to agree on the point.

I'm surprised to see you agree that Marks *solves* a strategic problem. To me, it creates a huge one: the median Justice (or, on a panel of 3, judge) can set the law at any point between the extremes, without convincing anyone of anything. And since few things exist along a clear single-dimension spectrum, that "pick a point" idea substantially understates the power and discretion of the median Justice.

Posted by: anon | Feb 10, 2013 3:57:21 PM


To be clear, my view is that the median Justice has that power whether Marks exists or not. Baze is a good example. In Baze, if there were no Marks rule, Justices Thomas and Scalia would have bit their tongues and joined the Chief's opinion. The only reason they felt free to write their own opinion is that Marks freed them to speak their minds and explain their disagreement. Cf. Scalia's concurrence in Arizona v. Gant (" It seems to me unacceptable for the Court to come forth with a 4-to-1-to-4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by Justice Stevens. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore join the opinion of the Court.").

Posted by: Orin Kerr | Feb 10, 2013 7:13:38 PM

Anti-Marks allows the non-median majority votes to prefer no precedent over bad precedent. It also gives them bargaining power. "Please consider making this change: with it, we'll provide guidance, but without it, we won't make law."

Posted by: anon | Feb 10, 2013 7:56:50 PM

Anon, I think tour disagreement boils down to a question: Would the Justices with more absolute views tend to prefer law that is modestly in their favor or would they prefer no law at all? I think that for most Justices, the answer is clearly the former; I gather you don't see it that way.

Posted by: Orin Kerr | Feb 10, 2013 8:29:03 PM

That's a fair summary. Although that's only one dimension of Marks (the one I mentioned up front).

Another that really irks me is the emptiness of "narrowest." In many if not most cases with a fractured majority, the reasoning doesn't neatly fit the Marks paradigm. The core of Marks is where, for example, 5 say a violation was shown, 4 say the showing required only A, where as one says the violation required A as well as B. Anything more complex (with only partly overlapping reasoning, for example) makes "narrowness" difficult to measure.

Also, it doesn't seem like the Supreme Court takes the rule too seriously, in the sense that the Court will readily decide the issue anew rather than defer the to the median Marks vote when the issue returns. I think we should keep that in mind as we evaluate the rule.

Posted by: anon | Feb 10, 2013 10:32:41 PM

In defense of the wrinkle, Scalia's point, I think, isn't really whether a Justice isn't considering the issue before the court, but whether his vote is cast on a ground that (a) a majority of the Court rejects and (b) a majority of the Court has held at some point isn't the law. In Coker, a majority of the Court rejected the view that the death penalty was always unconstitutional, and in Gregg, some years prior, the Court held that the death penalty wasn't always unconstitutional. In Baze, a majority of the Court held that some means of execution could be so risky that it violated the Eighth Amendment. So one has to ask, I think, why views that a majority of the Court has held aren't the law count towards determining a Marks holding, such that the Coker plurality becomes law because a majority of the Court, counting those Justices who would hold execution unconstitutional in every case, would invalidate the execution of all rapists. It seems to me that the Marks holding is Powell's opinion, first because it's a subset of the plurality, which is to say that 5 Justices would forbid execution in at least the cases Powell's opinion would, and second because you don't need to rely on views that the Court has held are not the law to count to that set of 5 Justices. Of course, it's true that a majority of the Court rejected Powell's narrow holding, but they didn't (not to beg the question) hold anything to that effect, because their rejection of his view wasn't outcome-determinative; the case would still have come out the same way if everyone joined Powell's opinion. What effect this revised version of Scalia's wrinkle would have in Baze, though, I'm not sure, because even discounting Thomas and Scalia's views, I think you still have a difficult time determining whether Breyer's opinion or Roberts's opinion is narrower. Even asking which opinion is the logical subset of the other, as many circuits do when applying Marks, doesn't really clarify things, because you could say that Breyer's opinion is a subset of Roberts's in that he'd allow a subset of the procedures Roberts would, or you could say that Roberts's opinion is a subset of Breyer's because he'd disallow a subset of the procedures Breyer would. In a strict sense, it's probably the latter because Breyer's opinion is a narrower ground for the judgment that the procedure in Baze is constitutional; if the narrowest holding possible is one that only upholds Baze's procedure, while the broadest is one that sanctions every procedure, Breyer's closer to that maximum of narrowness than Roberts. That said, I think an unspoken premise in a lot of Marks analyses is that "narrower" = a rule under which more is constitutional.

Posted by: Asher | Feb 11, 2013 11:11:10 PM

Oops. I just realized that I really should have mentioned in the opening post a fantastic article by Justin F. Marceau, Lifting the Haze of Baze: Lethal Injection, the Eighth Amendment, and Plurality Opinions, 41 Ariz. St. L.J. 159 (2009). Justin works through the application of the Marks rule to Baze in a much more thorough way than I could attempt here. I apologize to Justin for the oversight.

Posted by: Michael J.Z. Mannheimer | Feb 12, 2013 11:07:21 PM

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