Thoughts on Baze v. Rees:
I finally have Internet access again, and I wanted to blog some thoughts on yesterday's fascinating opinions in Baze v. Rees.

  First, I thought the Roberts plurality opinion, which is the binding decision under the Marks rule, is a pretty sensible solution to the problem. As I read it, it basically says that as long as states are reasonably careful there is no chance of an Eighth Amendment issue. If you're a state official, you pretty much just need to copy Kentucky's version of the protocol and you'll be fine. I thought this was a fairly sensible patch of minimalist middle ground, as it pushes states to do better but shouldn't lead to endless litigation.

  On the whole, I'm not surprised with this outcome. It's pretty much where I expected the Court to be on this issue back in 2006 when I tried to predict what the Supreme Court would do when they reached it. Whether Judge Fogel in California will get the message remains to be seen.

  The Stevens concurring opinion is certainly a throwback to an earlier age. I think Scalia's response was devastating, as the Stevens opinion does seem remarkably uninterested in distinguishing good policy from what the Constitution demands. Perhaps the most puzzling line in Stevens' concurrence was his statement that the Supreme Court's decisions "retain[ing] the death penalty as a part of our law" have been "the product of habit and inattention." The Supreme Court is inattentive to the death penalty like college guys are inattentive to women and beer.

  The natural comparison to Stevens' concurrence is Justice Blackmun's "no longer tinkering with the machinery of death" opinion in Callins v. Collins in 1994. In case you're wondering, Justice Blackmun published that opinion at the age of 84 after 24 years on the Court. He resigned from the Court about four months later. Justice Stevens published his opinion at the age of 87 (a few days shy of 88), after 32 years on the Court.

  Finally, I thought Justice Thomas's concurring opinion offered a pretty powerful originalist argument. As originally understood, the Eighth Amendment really did speak to these issues, and I thought Thomas did an important service by exploring that understanding in detail. Of course, what you make of Thomas's perspective depends largely on what you think of originalism, as well as what you make of modern Eighth Amendment jurisprudence. It was interesting to compare Thomas's analysis to how Justice Ginsburg dealt with the Court's method-of-execution precedents in her dissent: "Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time."

  A final thought. Both this case and Medellin v. Texas are the kinds of cases that are tricky for a Chief Justice to write in a way that keeps Justice Kennedy on board. In both cases, Chief Justice Roberts succeeded; AMK joined JGR in full and did not write separately.