Is That Legal?

NPR covered it. There was a back-and-forth about whether the convicted killer was obligated to propose an alternate method if challenging the current method. The question was whether one case disposes the question or whether there was going to be an endless string of litigation. Anyway, to a question from (I think) Ginsberg as to whether there would be any method of execution that the defendant would not subsequently challenge, Breyer interjected, "old age" and people started laughing.

[ELM: That's actually pretty funny!]

Yesterday afternoon on ATC Nina Totenberg said that Breyer made a joke (the defendent might propose that the state use old age as the method of execution instead of lethal injection) and there was "laughter in the courtroom." Then Kennedy "red-faced" pointed out they were talking about killing a man.

If this Court was the Warren Court then the votes would be there to outlaw the death penalty as unconstitutional. It was bizarre seeing Roberts and Alito and Scalia arguing that a itsy, bitsy amount of pain doesn't really matter because, after all, we're killing him. Meanwhile, the other side is stuck arguing that killing him is ok, but you really shouldn't cause a lot of pain in the process. Legally, these distinctions make sense, but philosophically they are wierd. Either taking the man's life is not ok or it is ok.