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 The nine-member court's five conservatives seemed likely to side
with Oklahoma in the case brought by three death row inmates, while
its four liberals expressed doubt about the propriety of using the
drug at the center of the dispute.
Conservative Justice Anthony Kennedy, who often casts deciding votes
in close cases, said nothing to suggest he would side with the
liberals.
The testy nature of exchanges between the justices during the
hour-long oral argument illustrated that while the case concerned
just one drug, it was playing out against the much bigger question
of whether the death penalty should be used in the United States at
a time when most developed countries have abandoned it. But that
question was not before the court.
The drug at issue is a sedative called midazolam, which the three
convicted murderers - Richard Glossip, John Grant and Benjamin Cole
- contend is unsuitable for use in executions because it cannot
achieve the level of unconsciousness required for surgery.
They say using midazolam violates the Constitution's Eighth
Amendment prohibition on cruel and unusual punishment.
 Some of the conservatives expressed concern that the case is part of
a sneak attack on the death penalty itself.
"Is it appropriate for the judiciary to countenance what amounts to
a guerrilla war against the death penalty, which consists of efforts
to make it impossible for the states to obtain drugs that could be
used to carry out capital punishment with little, if any, pain?"
Justice Samuel Alito asked.
The three-drug process used by Oklahoma prison officials has been
under scrutiny since a botched execution exactly a year ago to the
day of convicted murderer Clayton Lockett. He could be seen twisting
on the gurney after death chamber staff failed to place the
intravenous line properly.
Chief Justice John Roberts and Justice Antonin Scalia questioned
whether Lockett's case was relevant because there was evidence the
drug was not properly administered.
"I mean, if in fact the execution was not properly conducted, I
don't see how you can blame it on the drug," Scalia said.
Despite the bigger question of the death penalty lurking in the
background, only liberal Justice Stephen Breyer specifically
referenced it.
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Breyer said that "if there is no method of executing a person that
does not cause unacceptable pain, that - in addition to other things
- might show that the death penalty is not consistent with the
Eighth Amendment."
But Breyer and the other liberals focused most of their questions on
technical details about whether the drug should be used in the death
chamber because it cannot maintain a coma-like unconsciousness,
potentially leaving inmates in intense pain from lethal injection
drugs that halt breathing and stop the heart.
Justice Elena Kagan said if midazolam does not work, condemned
inmates would essentially be "burned alive" by one of the other
drugs used in the process, potassium chloride.
Midazolam has been used in executions in Oklahoma, Florida, Ohio and
Arizona.
Glossip arranged for his employer to be fatally beaten. Grant
stabbed a correctional worker to death. Cole killed his 9-month-old
daughter.
Oklahoma's governor this month signed a law allowing the use of
nitrogen gas as an alternative execution method if the Supreme Court
finds the state's lethal injection process unconstitutional or drugs
are unavailable.
A ruling is due by the end of June.
(Editing by Will Dunham)
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