Originally appeared on the Ten Miles Squire Blog on Washington Monthly on July 1, 2015.

Abstract

Earlier this week, the United States Supreme Court upheld, by a 5-4 vote, the states’ ability to execute death row inmates with a three-drug lethal injection cocktail that critics argue causes excruciating pain. The Court reasoned that states should be allowed to use the drug in question, despite its involvement in several botched executions, in part because states can no longer attain more effective alternatives. In the majority opinion, the justices spin an erroneous tale about “anti-death-penalty advocates” pressuring pharmaceutical companies into refusing to supply other, more humane drugs to the states for use in capital punishment. This alleged radical activism on behalf of the “abolitionists” engendered great sympathy from the Court for the poor, blameless states who are just trying to execute people, but can’t because of all the pseudo-“guerrilla warfare” (as Justice Samuel Alito referred to it at oral argument) against capital punishment.

This case thus raises the novel question of whether third parties should have the power to thwart—through behind-the-scenes maneuvering—a practice the Supreme Court has declared constitutional. And, more tellingly, whether the Court will show the same concern for others whose rights are also being obstructed by the stealth tactics of radical activists.

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