Choosing How to Kill Death Row Inmates

The Supreme Court seldom stands in the way of an execution these days. But last week, it refused to allow Alabama to put Jeffery Lee to death using nitrogen gas, a method that medical experts testified would cause condemned inmates to suffer intense distress akin to being suffocated or drowning.

His lawyers likened it to waterboarding, the interrogation technique used by the C.I.A. after the Sept. 11 attacks in which detainees were made to feel they were drowning. The practice has been widely condemned as torture.

The majority did not explain its thinking. Nor did the three dissenters, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.

Though the justices’ reasoning was opaque, they left in place a ruling that was clear and based on evidence tested by the adversarial system after a full trial.

Depriving an inmate of oxygen causes severe and needless pain, lower courts ruled. They said the state remained free to execute Lee using the alternative method he had proposed — a firing squad.

Bernard Harcourt, a law professor at Columbia who represents another condemned inmate challenging Alabama’s nitrogen-gas protocol, said the Supreme Court has long forbidden punishments involving torture or a lingering death.

“Burning someone to death, drowning them or suffocating them are forms of lingering death that the founders, and Blackstone before them, considered off limits,” he said, referring to William Blackstone, whose legal commentaries influenced the founding generation.

He added that the justice system and the public must have good information about executions.

“If we as a society are going to administer the death penalty, then we must have the courage to speak frankly about how it’s accomplished,” he said. “And we need to be present, through the media at least, to witness how it unfolds.”

Barring Reporters From Witnessing Executions

The week before the Supreme Court acted in Lee’s case, a divided three-judge panel of the federal appeals court in Chicago went in a different direction. It ruled that Indiana could prohibit reporters from observing executions.

The state’s guidelines are quite specific. Not only do they not require news media access — they actually forbid it.

“Media personnel shall not be permitted to witness the execution,” they say, unless the condemned inmate chooses to put them on the list of the five people he is allowed to invite.

When the case was argued in February, a lawyer for the state said reporters remained free to interview witnesses. “What they cannot do is to be their own primary source of the information,” the lawyer, Megan Smith said. “And there is no First Amendment right to do so.”

Judge Michael Scudder, a Trump appointee, agreed. On the one hand, he said, writing for the majority, The Associated Press and other news organizations challenging the Indiana law “make the fair and compelling point that increased scrutiny may lead to more humane and competently administered executions.”

On the other, he wrote, “allowing uninvited strangers with no immediate connection to the underlying crime to watch a prisoner die risks offending the dignity of their final moments.”

He concluded that the press has no constitutional right of access to executions.

In dissent, Judge Candace Jackson-Akiwumi, who was appointed by President Joe Biden, wrote that public scrutiny of executions should not turn on whether the condemned inmate chooses to “substitute a friend or relative for a member of the press.” Indiana, she noted, is “the only state with an active death row that does not guarantee the public or press access to its executions.”

Bearing Witness

Supreme Court precedent has long looked to history to decide whether the First Amendment guarantees a right of access to government proceedings. In the founding era, executions were conducted in public. That changed over time, but members of the public or the press have generally remained free to observe executions.

Indeed, reporters have played a critical role in bearing witness, exposing flaws in execution protocols and providing information to the public about what the government does in its name.

Kim Chandler of The Associated Press, for instance, provided an eyewitness account of the nation’s first execution using nitrogen gas, of Kenneth Smith in Alabama in 2024.

“Smith began to shake and writhe violently, in thrashing spasms and seizure-like movements, at about 7:58 p.m.,” she wrote at the start of a detailed account of one of roughly 15 executions she had covered.

In the Alabama case the Supreme Court considered last week, Lee, the condemned inmate, proposed a different way to be killed — a macabre requirement created by the Supreme Court as a prerequisite for challenging a method of execution. He chose a firing squad.

This may come as a surprise, but many legal experts agree that death from a firing squad is preferable to other methods. It is, they say, quick, painless and seldom botched.

In endorsing firing squads in a 2014 dissent Judge Alex Kozinski said they had another upside.

“Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood,” he wrote. “If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.”

Other Things Worth Knowing About

• The Supreme Court is in its homestretch and is set to release around 20 decisions in argued cases over the next two weeks or so, including major ones on birthright citizenship, transgender athletes and presidential power. The next decision day is Thursday. This handy tracker will help you stay up to speed.

• For a fine example of complete judicial exasperation with the Justice Department, see this order from Judge Kyle Dudek, a Trump appointee. He calls the government’s tactics “a master class in litigation cynicism” that “borders on the surreal.” His response to one government argument: “Give me a break.”

• But penalties for government lawyers who mislead judges are rare. On Tuesday, for instance, a standoff between a federal judge in Rhode Island and the Homeland Security Department wound down without discipline for a Justice Department lawyer who had helped mislead the court.

• I was off last week and caught up on some reading, finishing two books and starting a third. All concerned journalism. In Gay Talese’s odd and wonderful 1969 history of The New York Times, “The Kingdom and the Power,” I particularly like James Reston’s mission statement: “Our job is to print the news and raise hell.” I gulped down Theo Baker’s “How to Rule the World,” which is at once a riveting account of a relentless student journalist who brought down the president of Stanford, a look at the way the tech industry has warped that university and a disarming and vulnerable coming-of-age memoir. And I’m consuming at a more measured pace “Walter Lippmann and the American Century,” Ronald Steel’s 1981 biography of the enormously influential journalist and political theorist.

Mailbag

How to Tell Which Side Will Win

Is it possible to predict, with a fair degree of accuracy, the outcome of some Supreme Court cases? — Steve Sarper

Sure. For starters, the party that asked the Supreme Court to hear the case wins about two-thirds of the time.

Then add that the lawyer who gets the most questions at argument tends to lose. Chief Justice John Roberts conducted a study demonstrating this in 2004, when he was an appeals court judge, finding that the most-questions rule predicted the result 86 percent of the time. “The secret to successful advocacy,” he said, playfully, “is simply to get the court to ask your opponent more questions.”

And the justices themselves are not full of surprises, particularly in big cases. Over almost two decades, it was the rare argument in which I left the courtroom without a pretty good idea about how the case would turn out. And that was true even when the court was more closely divided, before its conservative wing swelled to six members.

I’d love to hear your questions on the law, the courts or whatever is on your mind. Send them my way at the-docket@nytimes.com.

JD Vance Tags Along, Again

The motorcade barreling up Connecticut Avenue in northwest Washington on Saturday evening was headed for a party celebrating Justice Brett Kavanaugh at the Chevy Chase Club, just over the Maryland line. It was a reunion of his former law clerks, and it marked his 20 years on the bench.

The motorcade was for Vice President JD Vance and one of those former clerks, Usha Vance, who had worked for Justice Kavanaugh when he was an appeals court judge.

The vice president was in a sense just along for the ride. But he and the justice are not strangers. JD Vance took a seminar taught by Judge Kavanaugh on national security law at Yale Law School in 2011.

Seven years later, when President Trump nominated Justice Kavanaugh to the Supreme Court, I asked Vance about the class. He said good teachers and good judges shared important qualities, including civility and intellectual honesty.

“He really didn’t like it when you’d try to tear down another argument unfairly,” Vance said then. “He really wanted you to identify the best version of an argument and not assume that your intellectual opponents were all idiots.”

Justice Kavanaugh administered the oath of office to Vance last year.

Vance, whose office did not respond to a request for comment, attended another clerk reunion last month, visiting the Supreme Court for a dinner with Chief Justice Roberts and dozens of his former law clerks, one of whom was Usha Vance.

As my colleague Ann Marimow wrote of that reunion, around 100 guests had cocktails in a courtyard, followed by dinner in a formal conference room. When the chief justice gave brief remarks to welcome guests, he did not offer any special greeting to JD Vance.

For that night too, Ann wrote, the vice president was just a plus one.