On Thursday night, Alabama executioners killed Kenneth Eugene Smith using nitrogen gas, the first ever use of this method to carry out a capital sentence in America. Smith argued that killing him with nitrogen would violate the Eighth Amendment’s bar against cruel and unusual punishment, but the Supreme Court declined to stay his execution by a 6–3 vote. On Saturday’s Slate Plus segment of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed the conservative majority’s refusal to halt Smith’s grisly, torturous death, and how its abandonment of the Eighth Amendment could backfire against the death penalty in the long run. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: We need to talk about the unspeakable, staggering news that the Supreme Court allowed the first American execution using nitrogen gas to move forward in Alabama on Thursday. The three liberal justices dissented. Mark, we’ve talked about the death penalty so many times over so many years that it’s hard to even think of what we could possibly say about what feels like an unholy experiment with the machinery of death that was just signed off by six justices.

Mark Joseph Stern: Without any opinion or justification, as usual—a classic shadow docket order. Because how could they justify it? It’s so easy to remain silent instead.

It’s worth noting two damning points here. First, the defendant in this case, Kenneth Eugene Smith, was convicted of murder in Alabama. However, the jury voted 11–1 to spare his life, rejecting a capital sentence. The judge then overrode the jury’s near-unanimous determination and instead sentenced him to death. That practice of judicial override, rejecting the decision made by a jury of the defendant’s peers, is now banned in every state.

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