Summer SCOTUS Roundup: Gorsuch and the Death Penalty in McGehee v. Hutchinson

Photo courtesy of Pixabay


By Nick Frost, Executive Editor

One of the most contentious issues in America today is the application of the death penalty. It is undoubtedly a common topic in public speaking classes around the world because of the passionate arguments it invokes for both sides. It has caused countless protests outside of jails, and it has numerous organizations created in favor and in opposition of its use. The death penalty is one of the “Big Issues” on, whose users, as recently as July 17, 2017, were split 50-50 for and against it.[1]

After the death of Antonin Scalia, the Court was divided on this issue multiple times before the appointment of Neil Gorsuch.[2] So, it seems fitting that the death penalty is a central point in the Court’s first voted-on case with Justice Gorsuch on board. Justice Gorsuch was sworn in April 10 before spending the rest of the week preparing for the oral arguments he would hear on April 17. After his week of preparation, he was an active member — having questions for six of seven oral arguments and casting his deciding vote for McGehee v. Hutchinson.[3]

The case began on the track to the Supreme Court when Arkansas Governor Asa Hutchinson ordered eight convicted murderers to be put to death prior to the expiration of a critical drug required for executions, midazolam. Ledell Lee was one of those eight and appealed his execution on several grounds — contending that this was an act of cruel and unusual punishment, he was intellectually disabled, and he had insufficient representation in his prior cases.[4]

These points failed to prevent his death a few hours after the Justices’ vote came down 5-4 to remove the stay on his execution. There was no majority opinion for this case, so the public does not know the legal reasoning for revoking the stay. Instead, Justice Breyer and Justice Sotomayor’s dissenting opinions were the ones released for the public to read.

Justice Sotomayor’s dissent[5] mainly focused on an issue that was picked up earlier by 8th Circuit Judge Jane L. Kelly: The court in Glossip v. Gross, No. 14-7955, 576 U.S. ___ (2015)[6] “failed to defer to the District Court’s extensive factual findings and instead substituted its own findings”[7] and, in doing so, “swept aside the District Court’s well-supported finding that midazolam creates a substantial risk of severe pain.”[8] Essentially, Justice Sotomayor argued that the use of the drug in executions is cruel and unusual punishment. Justice Ginsburg joined her opinion.

Meanwhile, Justice Breyer’s dissent[9] was more concerned with the motive behind pushing these executions forward, as they appeared to be caused by midazolam’s imminent expiration in less than two weeks following the vote. “That factor, when considered as a determining factor separating those who live from those who die, is close to random,” Justice Breyer writes.[10] Justice Kagan joined his opinion.

Following this case and several others, four of the eight death row inmates were executed before the end of April. With the turn of the month, the executions met an abrupt halt as the state’s midazolam expired.[11]

Because of how divided the country is on the use of the death penalty, this case was always going to be controversial. But for newly appointed Gorsuch, having a deciding vote on a case literally weighing life and death was a preview to the responsibilities and demanding decisions he will continue to make as a Justice of the Supreme Court.










[8] Id.


[10] Id.


Comments are closed.