Analysis 
 
 For months, the Supreme Court has given no explanation as it refused to give inmates awaiting execution any chance to learn about the methods by which they would be put to death, and has said nothing as it allowed states to experiment with new lethal-drug combinations even after some of those executions were seriously botched. It allowed one inmate to be put to death even before it decided whether to hear his case. In other words, the regime of capital punishment went forward without any new constitutional assessment of it by the Justices; they have not done so on lethal-drug executions for seven years. 
 
 On Wednesday, the nation may have gotten the beginnings of an explanation. What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross. 
 
 That case, at its core, is only about whether the first drug Oklahoma uses in its three-drug lethal combination is capable of making the inmate sufficiently unconscious that he feels little or no pain as the next two, highly toxic drugs paralyze and then kill him. The grim possibility of that particular protocol was described alarmingly by Justice Elena Kagan as “burning alive, from the inside.” 
 
 And Wednesday’s argument started out as if it would proceed through a detailed examination of the properties of that first drug — midazalom — and how two lower courts had analyzed its effect in the execution chamber. There was much discussion about judicial fact-finding and what was open to the Supreme Court to second-guess about that. 
 
 But the tone and the substance of the argument changed abruptly, when Justice Samuel A. Alito, Jr., moved aggressively into an exchange with the Oklahoma death-row inmates’ lawyer, Robin C. Konrad. 
 
 “Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” 
 
 He went on: “And so the states are reduced to using drugs like this one [midazalom] which give rise to disputes about whether, in fact, every possibility of pain is eliminated.” 
 
 After Konrad replied that it was the duty of the courts to decide whether a method of execution was constitutional, Justice Antonin Scalia took up Alito’s point. The states, Scalia said, have tried other drugs, and those have been made unavailable “by the abolitionists putting pressure on the companies that manufacture them so that the states cannot obtain those other drugs.” The reason midazalom may not be “100 percent” certain to mask pain, he added, “is because the abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as relevant to the decision that you’re putting before us?” 
 
 The inmates’ lawyers tried to respond that it was irrelevant, because the Court was obliged to examine the constitutionality of a particular protocol a state chose to use. When the argument seemed to move on, Justice Anthony M. Kennedy insisted, with evident impatience, that Konrad had not answered the question of whether the resistance to the death penalty was a factor that the Court should consider in weighing the validity of a given protocol. 
 
 Although Kennedy’s approach was less emotional, it seemed clear that he, too, was frustrated with the resistance movement and what it required the Justices to do to examine each state’s approach to executions. 
 
 Before long, Chief Justice John G. Roberts, Jr., joined in this line of questioning, pressing Konrad to come up with suggestions of alternatives that would enable the states to proceed with capital punishment. “The case comes to us,” Roberts said, “in a posture where it’s recognized that your client is guilty of a capital offense, it’s recognized that your client is eligible for the death penalty, that that has been duly imposed. And yet you put us in a position with your argument that he can’t be executed, even though he satisfies all of those requirements. And you have no suggested alternative that is more humane.” 
 
 Konrad was being battered by the Justices’ underlying discontent with the way the fight against capital punishment has moved from outright attempts at abolition to a seeming campaign to put it out of reach, one execution method at a time. 
 
 If Justice Clarence Thomas, who as usual said nothing during the hearing, shared the views of four of his colleagues that the states were being hampered improperly from going ahead with executions, that could make a majority to reject the challenge that the Oklahoma inmates have mounted. What form a final decision might take was not clear, but it seemed quite obvious that several of the Justices, and perhaps a clear majority, would be looking for a way to deter the abolition-by-litigation movement. 
 
 The four more liberal members of the Court — who probably were the ones who cast the four necessary votes to hear the challenge to Oklahoma’s execution protocol — used Wednesday’s hearing to probe in close detail how that protocol works, and what its justifications were. They pummeled the Oklahoma solicitor general, Patrick R. Wyrick, with hard questions about the effects of midazalom, and even questioned the sincerity of the claims that the state had made in its brief in the case. 
 
 That reach into the chemical and medical details of Oklahoma’s procedure perhaps served to illustrate just what the apparent majority of the Court did not want to be the ongoing task of the judiciary in overseeing the states’ discretion about how to conduct executions. 
 
 Recommended Citation: Lyle Denniston, Argument analysis: Impatience with death-penalty resistance, SCOTUSblog (Apr. 29, 2015, 3:14 PM), http://www.scotusblog.com/2015/04/argument-analysis-impatience-with-death-penalty-resistance/ ||||| The Supreme Court’s hearing Wednesday about the constitutionality of a lethal injection procedure turned into a tendentious, almost bitter battle between the court’s conservative and liberal justices. 
 
 Justice Samuel A. Alito Jr. accused those of trying to prevent the use of the drug midazolam as part of a lethal injection procedure in Oklahoma of waging a “guerrilla war against the death penalty.” Repeated challenges of lethal injection procedures, he said, were meant only to delay the implementation of executions. 
 
 Justice Antonin Scalia agreed, saying the “abolitionist movement” had put pressure on drug manufacturers to stop making available to states drugs that would ensure executions were not needlessly painful. 
 
 Justices Sonia Sotomayor and Elena Kagan were just as forceful on the other side. Kagan said that without proper sedation, the drug used to cause death was akin to being burned at the stake, except a person is being “burned alive from the inside.” Sotomayor told the Oklahoma solicitor general she would not believe assertions in his brief unless she verified them herself. 
 
 The Supreme Court heard arguments on the constitutionality of the lethal injection procedure, a case that stemmed from a botched execution in Oklahoma. (Reuters) 
 
 The questioning of Oklahoma’s Patrick R. Wyrick was so intense by the liberals that Chief Justice John G. Roberts Jr. granted him additional time at the podium. “Hopefully we will have a chance to hear what you have to say,” he said. 
 
 [Oklahoma recently made nitrogen gas its backup execution method] 
 
 These arguments came a year to the day after a botched execution in Oklahoma left an inmate writhing and grimacing on a gurney, drawing international attention to issues facing the lethal injection process in the United States. 
 
 The Oklahoma case centers on a particular drug that has been used by that state and others in executions that went awry last year. But it also touches on the reality that the capital punishment landscape in this country has fractured, pushing execution protocols further and further away from a method the court previously upheld. 
 
 The justices were revisiting the issue of lethal injection for the first time since 2008, when they upheld a three-drug combination and said it did not violate the Constitution’s ban on cruel and unusual punishment. At the time, these drugs were used across the country. But an ongoing shortage of lethal injection drugs fueled largely by European objections to capital punishment has caused states to struggle to find new drugs, create different protocols and seek other methods. 
 
 Until 2010, lethal injections in the United States were generally carried out using an anesthetic, a paralytic drug and a drug that stopped the heart, according to the Death Penalty Information Center. But a company that produced sodium thiopental, the anesthetic that was commonly used, stopped making the drug due to capital punishment. States began using another drug, pentobarbital, but the Danish company that supplied it said it would stop shipping it to U.S. prisons that executed inmates. 
 
 So states began adopting new and different drugs. In Oklahoma, when state officials could no longer obtain the drug they used to rely on, they turned to the drug midazolam. This particular drug was used in three problematic executions last year, turning it into a focal point for debates about lethal injections. 
 
 The most high-profile of these was Oklahoma’s bungled attempt to execute convicted murderer Clayton Lockett. The state used midazolam in one of its executions for the first time, and Lockett kicked, grimaced and survived for 43 minutes after the execution began. He eventually died after officials had already halted the process, and a state investigation blamed the bungled procedure on the execution team’s insertion of the needle during the injection. 
 
 Chief Justice John G. Roberts Jr. and Scalia both pointed out that there were issues with the administration of the drugs in Lockett’s execution. “If in fact the execution was not properly conducted, I don’t see how you can blame it on the — on the drug,” Scalia said. 
 
 Midazolam was also used last year in the execution of an Arizona inmate who gasped and snorted and took nearly two hours to die, as well as the lethal injection of an Ohio inmate who gasped and choked before dying after nearly half an hour. 
 
 “We’ve seen that lethal injection is not the swift, painless, effective method of causing death that it was made out to be,” said Robert Dunham, executive director of the Death Penalty Information Center. “The myth that you can swiftly and painlessly execute somebody in a manner that is humane and marginally civilized seems to have evaporated.” 
 
 Florida, the first state to use the drug in an execution, has utilized it numerous times without many witnesses reporting these kinds of issues; a media witness said that when the state first used the drug, the inmate being executed appeared to remain awake and moving for an unusually long period of time. 
 
 Ohio has since dropped midazolam from its protocol, and that state postponed its executions this year to give it time to adopt a new lethal injection practice. After the botched procedure last year, Oklahoma also changed its execution protocols, keeping midazolam but ramping up the dose to match the level used in Florida. 
 
 [What the Supreme Court’s decision here could mean for the death penalty] 
 
 The week before the justices decided to accept the lethal injection case, Oklahoma carried out its first execution since Lockett was put to death. The inmate, Charles Warner, who was convicted of raping and murdering an 11-month-old, had originally been set to die the same night as Lockett, but his execution was postponed. 
 
 The justices declined to stay that execution when the court’s four justices who wanted the execution stayed were overruled. However, it takes five justices to stay an execution, while it takes only four to accept a case. In the months since the Supreme Court said it would hear the challenge, states have carried out multiple executions. 
 
 Justice Sonia Sotomayor wrote in a dissent arguing for a stay that she found the idea that midazolam could “work as intended difficult to accept given recent experience with the use of this drug.” 
 
 Experts have said it is unclear whether midazolam can produce a deep enough level of unconsciousness to prevent an inmate from feeling pain from the injections that follow. In the briefs filed for this case, midazolam’s effectiveness takes center stage again and again. 
 
 The three Oklahoma death-row inmates arguing against the state’s protocol now argue in their filing to the court that using midazolam will cause them “excruciating pain and suffering during their executions.” 
 
 However, Scott Pruitt, the Oklahoma attorney general, and other state officials argue in their brief that this is not the case, instead painting this argument as an attempt to fight the death penalty under the guise of questioning one drug. 
 
 “Oklahoma’s lethal injection protocol does not present a substantial risk of severe pain and cannot be considered cruel,” the state officials wrote. In addition, the state also calls the attacks on midazolam “unwarranted” and says the higher dosage of the drug would cause unconsciousness during executions. 
 
 Pruitt said in a statement Wednesday after the arguments that he was confident the justices would uphold the state’s procedure. 
 
 More than a dozen professors of pharmacology had also submitted a brief to the court, taking no side in the case but writing that midazolam cannot be considered “an appropriate substitute” for the drugs that had been used to induce unconsciousness in executions. 
 
 Meanwhile, authorities in Florida — which has halted its own executions until the judges issue a decision — submitted a brief to the court agreeing with Oklahoma and saying that their state’s experiences show that midazolam can be used in humane executions. 
 
 The justices were facing questions of how to approach executions that involve substantially different protocols than the one they upheld in 2008, as well as whether condemned inmates should have to provide an available alternative if they object to an execution method. 
 
 In 2008, when the justices agreed to uphold the three-drug method, they did not all come to the same conclusions about the case or what could follow. Seven justices ultimately filed opinions in that case. Roberts, writing for the court, noted that there is always some risk inherent in an execution, but that alone does not make it unconstitutional. 
 
 “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual,” he wrote. 
 
 Justice Clarence Thomas agreed with the outcome but not the reasoning, instead determining that a method of execution is only unconstitutional “if it is deliberately designed to inflict pain.” 
 
 Related: How the death penalty continued its slow, steady decline in 2014 
 
 [This post has been updated. First published: 8 a.m.] ||||| Breaking News Emails Get breaking news alerts and special reports. The news and stories that matter, delivered weekday mornings. 
 
 Supreme Court justices clashed Wednesday over whether a lethal-injection cocktail used by several states is too painful — with one likening it to being burned alive, and another saying "guerrilla war" is being waged against the death penalty. 
 
 The heated arguments over a challenge by several death-row prisoners in Oklahoma came exactly one year after the botched execution of an inmate there reignited debate over capital punishment and triggered a federal review of protocols nationwide. 
 
 The specific issue is the sedative midazolam. The question is whether it puts condemned inmates into a coma-like state before two other drugs are given, protecting them from the kind of pain that would violate the Eighth Amendment restriction on cruel and unusual punishment. 
 
 Justice Samuel Alito noted that Oklahoma has not been able to obtain more reliable drugs because death-penalty opponents have convinced pharmaceutical companies to not supply them. 
 
 "Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty?" Alito asked the lawyer for the inmate. 
 
 Justice Elena Kagan, on the other hand, pointed out that the third drug in Oklahoma's protocol — potassium chloride — has been likened to being burned alive. She asked the state whether it would be constitutional to burn someone at the stake after an anesthetic with debatable pain-killing properties. 
 
 "Maybe you won't feel it, maybe you will," she said. "We just can't tell." 
 
 Follow NBC News Investigations on Twitter and Facebook. 
 
 Justice Sonia Sotomayor slammed Oklahoma's lawyer, Solicitor General Patrick Wyrick, for what she characterized as deceptive misstatements in the state's brief. 
 
 "Nothing you say or read to me am I going to believe unless I see it with my own eyes," she scolded him. 
 
 Justice Antonin Scalia, meanwhile, vented his frustration with the argument that midazolam is not effective at producing a state of pain-free unconsciousness like other drugs that used to be the standard but are now scarce. 
 
 "The abolitionists have rendered it impossible to get the 100 percent," he told the inmates' lawyer, Robin Konrad. 
 
 Robert Dunham of the Death Penalty Information Center, which opposes execution, said there were no big surprises in the questions from the bench. Justice Anthony Kennedy, seen as the swing vote, said little. 
 
 "Several justices on both sides gave clear signals on where they stand," he said. "There is no clear signal on where the majority of the court stands." 
 
 The lead plaintiff in the case is Richard Glossip, 51, who was one day away from getting the needle for the 1997 murder-for-hire of his boss when the high court agreed to hear a challenge to lethal injections — its first in seven years.
– Things got about as nasty as they get in the Supreme Court chambers as the justices today debated the constitutionality of a lethal-injection drug. Samuel Alito, for example, accused opponents of the death penalty of engaging in a "guerrilla war" to stop it, while Elena Kagan likened the execution protocol to being burned alive, reports the Washington Post. At issue specifically is whether the first drug in a three-drug combination used by Oklahoma works well enough—critics say the sedative, midazolam, fails to make the following two drugs painless. Kagan likened the effects of one of those drugs to being "burned alive from the inside" and wondered whether the state would sanction burning at the stake after administering an iffy anesthetic, reports NBC News. "Maybe you won't feel it, maybe you will," she said. "We just can't tell." Antonin Scalia, meanwhile, declared that states can't get "100 percent" drugs because death-penalty "abolitionists" are making it impossible with their pressure on manufacturers. The big question, as usual, is where probable swing vote Anthony Kennedy stands. "It seemed clear that he, too, was frustrated with the resistance movement and what it required the Justices to do to examine each state’s approach to executions," writes Lyle Denniston at SCOTUSblog. Meaning that when the decision is eventually announced, it will probably be bad news for death-row inmates. (The arguments came exactly one year after the botched execution of Clayton Lockett in Oklahoma.)