Justice Brett Kavanaugh on Tuesday signaled a possible break with his fellow conservative Supreme Court justices during a dramatic day of oral argument in a high-stakes death penalty case.
The case concerns Russell Bucklew, who was convicted in Missouri on charges of murder, kidnapping and rape, and sentenced to be executed this year. Bucklew has argued that his execution, if carried out by lethal injection, would be cruel and unusual because he has a rare medical condition that would make the procedure excruciatingly painful.
In his questions to Missouri's attorney, Kavanaugh suggested he was sympathetic to that argument.
"Are you saying even if the method creates gruesome and brutal pain you can still do it because there's no alternative?" Kavanaugh asked John Sauer, the state's solicitor general.
Sauer responded that under precedent set by the high court it would be necessary for the person set to be executed to offer an alternative method that reduced the pain.
"So you're saying that even if the method imposes gruesome, brutal pain, you can still go forward?" Kavanaugh asked. "Is there any limit on that?"
Kavanaugh appeared to be testing the logic of a separate precedent established by the court in 2015. In Glossip v. Gross, No. 14-7955, the court ruled that death row inmates challenging the method of their execution must provide an alternative.
Sauer said that it would be unconstitutional, for instance, to "deliberately inflict pain for the sake of pain." But he pointed to the court's previous rulings that found completely eliminating the potential for suffering to be impossible.
The court also has found execution to be impermissible in cases where the person to be executed is incompetent or severely mentally handicapped.
Kavanaugh's questions raise the specter that he could join the court's four liberals in sending Bucklew's case back to a lower court in order to resolve questions about how to handle his medical needs. The court's 5-4 majority that agreed to stay Bucklew's execution earlier this year included retired Justice Anthony Kennedy, who Kavanaugh succeeded last month.
While Kavanaugh's views on the death penalty are not clear, court watchers expected him to side with the other Republican-appointed justices more frequently than Kennedy, who often served as a swing vote on social issues.
Bucklew's case is the second this term to deal with the death penalty. The first case, concerning whether a state can execute a person who has no memory of the crime they are set to be executed for, was argued last month before Kavanaugh was confirmed.
After Kavanaugh's exchange with Sauer on Tuesday, Justice Stephen Breyer, an appointee of President Bill Clinton, followed up with a question about whether the Constitution would permit burning at the stake.
"It's exactly the same to him as if you burned him at the stake. And I guess if you're going to rule out the one, you'd rule out the other," Breyer said. "Because of his rare medical condition, [lethal injection would] feel exactly the same as if he'd been drowned to death."
Then Breyer made a direct connection to Kavanaugh's line of questioning.
"That's why I think Justice Kavanaugh brought that up," Breyer said.
A ruling in the case is expected to come by the end of June.