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Court Weighs Procedural Issue in Death Row Lawsuit

By Charles Lane
Washington Post Staff Writer
Thursday, April 27, 2006; A10

Few issues test the Supreme Court's unity more than the death penalty, and the justices' deep disagreements were evident yesterday during oral argument on the rights of death row inmates to challenge lethal injection as a cruel and unusual punishment.

This ends up being a procedural issue:

But the precise issue before the court is not whether lethal injection is unconstitutional. Rather, it is a related procedural question: Should courts treat a prisoner's assertion that a particular method of execution is unconstitutional as a federal civil rights lawsuit, as Hill argues, or as a petition for habeas corpus, as Florida says?

The question is critical, because Congress has put strict limits on habeas corpus claims but not on civil rights suits.

We have seen this before with property: when the notion of vested rights is foreclosed, people turn to the contract clause. when contract clause litigation is foreclosed, people turn to due process. When due process litigation is foreclosed, people turn to limits on takings, and limits on congressional commerce power.