Or maybe not so much. When the state told the Court about its “humane” procedures, it didn’t even know what three drugs it had on hand. Shortly before Glossip’s scheduled execution, in fact, Fallin learned that an autopsy showed Oklahoma had already used the wrong drug to execute another condemned inmate, Charles Warner, in January. Warner was originally a petitioner in Glossip’s case. The Supreme Court denied him a stay, then accepted the case after Warner had been killed.

Justice Stephen Breyer, in a separate opinion for himself and Justice Ruth Bader Ginsburg, announced in Glossip that, in his view, the death penalty could no longer be administered fairly, and thus was unconstitutional. That didn’t sit well with Justice Antonin Scalia, who wrote in a separate opinion that Breyer’s “argument is full of internal contradictions and (it must be said) gobbledy-gook.”

A week after Fallin’s revelation, the Court heard the first of the four death-penalty cases it has granted this term. The hard feelings in Glossip have apparently not healed.

Kansas v. Gleason and Kansas v. Carr challenge Kansas trial judges’ instructions to two juries mulling death sentences for murderers. Under existing precedent, the jury is supposed to consider a statutory set of “aggravating factors,” which the prosecution must prove beyond a reasonable doubt. The defendant may ask the jury to consider “mitigating factors” (such as a defendant’s limited mental capacity or history of mental illness, a past history of abuse, or anything else—including the desirability of mercy—that his lawyers can think of). Unlike the prosecution, the defendant doesn’t have to prove that these factors exist “beyond a reasonable doubt,” and the jurors don’t have to find them unanimously.

Many states, and the federal government, explain these different burdens to the jury; but the courts in Gleason and Carr did not. Since those decisions, Kansas has changed the “pattern instructions” used by its judges; the Kansas Supreme Court ordered the two courts to go back and resentence the defendants using these instructions, because, it said, the instructions used might convince jurors that the defendant also had a “reasonable doubt” burden.

Soon after argument began in Kansas v. Gleason on October 7, Scalia used his best tell-frogface-to-pass-the-salt voice to ask Kansas Attorney General Derek Schmidt whether “Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it.” For that reason, he suggested (“I’m just speculating of course”) that the Kansas Supreme Court had actually lied by claiming that that the Eighth Amendment, rather than their own squishy liberal prejudices, required granting the defendants a new sentencing. Alito seemed to agree: “[P]resumably, the Kansas Supreme Court understood that it had the capability of basing its decision on Kansas law. But if it did that, it would have to take responsibility for the decisions in these cases, which involve some of the most horrendous murders that I have seen in my 10 years here.” The Kansas court, however, “didn't take responsibility for that. It said ‘it's the Eighth Amendment, and we have to apply the federal Constitution.’”