It's very hard to defend the death penalty, and they don't want to be in that position.

So instead, they want to keep hammering on the table and say, but it's constitutional

and therefore states should be allowed to do it, and therefore we shouldn't have to try to

defend it on its merits.

Hi and welcome back to Amicus Slate's podcast about the courts and the Supreme Court and the

rule of law. I'm Dahlia Lithwick. I cover many, some, most of those things

for Slate. This week brings us to a topic we actually haven't addressed really directly on the show

in, I think, a number of years, and that is the death penalty. The last few weeks have actually

brought us a raft of incredibly divisive and, and I think even rancorous, ugly public

fights on the court around capital punishment, which is very strange, given that the number

of executions in this country continues to drop. And yet, a Supreme Court presumably more

devoted than ever to proving that it all gets along all the time, despite everything, has been actually willing to punch and scratch and pull hair in a series of big death penalty cases in recent weeks.

This culminated a week ago in a doozy of a ruling about how painful an execution can be. We wanted to try to

understand why these death penalty cases seem to strike so deeply into the heart of the

justice's moral reasoning about the world and why they're willing to get so publicly mad about it.

To do that, we have invited on

Professor Carol Stiker. There is almost nobody out there who knows this better. She's the

Henry J. Friendly Professor of Law and Faculty Co-Director of the Criminal Justice Policy Program

at Harvard Law School. She specializes in criminal justice with a special focus on capital

punishment and her most recent book, Courting Death, the Supreme Court and Capital Punishment,

co-authored with her brother, Jordan Steiker, of the University of Texas School of Law,

was published by Harvard University Press in November 2016. My friend Link Kaplan called it, quote, the most important book about the death penalty in the United States, not only within the past generation, but arguably ever, end quote. Their research is sweeping. It is devastating about the ways in which the death penalty is currently administered. And Carol, it is just a thrill to

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