The end of the 2005-2006 Supreme Court term brought a flurry of death penalty opinions. (1) The media lavished attention on the fiery concurring and dissenting opinions of Justices Scalia and Souter in Kansas v. Marsh; in addition to upholding Kansas' capital sentencing protocol, the Marsh court engaged in a rare theoretical and pragmatic debate over the death penalty. (2) In contrast, Hill v. McDonough was brushed aside by many as involving a mere "procedural issue." (3) With the spotlight now focused on lethal injection challenges, (4) however, it is the Hill decision that packs enough punch to drastically alter death penalty litigation. In Hill, the Court held that condemned inmates can challenge a state's method of execution under 42 U.S.C. [section] 1983 in addition to seeking habeas corpus relief. Although the decision has been interpreted as a resolution to "a narrow procedural question," (5) some commentators have read Hill to signify that the Court is now ready to entertain arguments over the substantive merits of lethal injection, (6) the country's most prevalent method of execution. (7) The Hill decision, handed down in the midst of rising national conflict over the use of lethal injection, not only reinvigorated the debate but also made the Court an active participant.
