Gross Error

76 Pages Posted: 23 Mar 2016 Last revised: 19 Oct 2016

See all articles by Eric Berger

Eric Berger

University of Nebraska at Lincoln - College of Law

Date Written: March 21, 2016


Glossip v. Gross epitomizes judicial deference gone berserk. In rejecting an Eighth Amendment challenge to Oklahoma’s lethal injection protocol, the United States Supreme Court rested its holding on several forms of deference. Closer examination demonstrates that each of these unsupported deference determinations was, at best, contestable and, at worst, simply wrong. Far from being anomalous, such under-theorized deference reflects more generally the Court’s willingness to utilize various stealth determinations to manipulate outcomes in constitutional cases.

The understandable concern that frivolous lethal injection challenges will clog courts and delay executions likely motivated the Court’s approach. Remarkably, though, the Court did not even attempt to distinguish humane execution protocols from dangerous ones. Many states, including Oklahoma, have repeatedly shown that they cannot be trusted to implement lethal injection procedures carefully. The Court’s deference turned a blind eye to this history and upheld a manifestly dangerous execution procedure. In so doing, the Court tried to shut down an entire category of litigation, thereby abdicating its constitutional responsibility to safeguard individual rights. Regardless of one’s views on capital punishment, Glossip v. Gross’s reflexive deference determinations collectively amount to gross error.

Keywords: Lethal injection, Eighth Amendment, Supreme Court, capital punishment, death penalty, method-of-execution challenge, Glossip v. Gross, judicial deference, Baze v. Rees, cruel and unusual punishment, institutional analysis, standard of review

Suggested Citation

Berger, Eric, Gross Error (March 21, 2016). 91 Washington Law Review 929. Available at SSRN:

Eric Berger (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States
402 472-1251 (Phone)

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics