Earlier this month, Secretary of Defense Pete Hegseth announced that military personnel would execute Nidal Hasan, who killed 13 people in the 2009 Fort Hood shooting, by firing squad on December 3, 2026. Hegseth also said that the Pentagon would livestream the execution for all the world to see. “We’ll make sure that people are able to watch it, that it’s public, because people need to understand that there’s serious consequences for these types of things,” he said.
The backlash was so swift and widespread that it took only a week for President Donald Trump to rescind the livestreamed portion of the plan. And although it is this administration’s moral sickness that led to the public outcry, the responsibility for the fact that broadcasting an execution by firing squad seemed legally possible lies squarely with the Supreme Court.
It is not hard to list reasons that livestreaming a firing squad execution is a bad idea. Children would have access to this video within seconds of its release, regardless of whatever flimsy protective measures the administration would have imposed. Video reels and memes would show the killing on every social media app, doctored and set to music, until the end of time, or at least until the end of the internet. Millions of people would for the first time see someone being killed, an experience that any veteran will tell you is traumatizing and morally painful regardless of the circumstances. It would send a Hunger Games-like message that state-sponsored violence is a source of entertainment.
If the public killing had been challenged in court, though, the government likely would have won. Since the 1970s, when the Supreme Court imposed and then lifted a brief moratorium on the death penalty, the justices have repeatedly turned away constitutional challenges to capital punishment. Under the originalist understanding of the Eighth Amendment, the Constitution only bars visceral, grotesque methods of execution, such as beheading or disembowelment. As long as the government steers clear of these methods, though, it is free to do as it pleases. And if it wants to broadcast an execution, that’s none of the Court’s business.
In 1879, the Supreme Court held in Wilkerson v. Utah that firing squad executions are constitutional. (The criminal sentence at issue in Wilkerson specifically called for a punishment of being “publicly shot until you are dead.”) Nearly a century later, in 1976, the Court approvingly cited Wilkerson in Gregg v. Georgia, which ended a moratorium on the death penalty that the Court had imposed just four years earlier, in 1972. The Court again boosted Wilkerson in 2015 in Glossip v. Gross, which approved Oklahoma’s use of a three-drug lethal injection protocol that caused excruciating pain, and criticized the defendant for not providing a sufficiently useful alternative method of execution.
South Carolina lawmakers almost certainly had Glossip in mind in 2021, when they passed a law reviving firing squads and “allowing” defendants to choose between being shot to death, injected with drug compounds, or killed by the electric chair. After the South Carolina Supreme Court upheld the law in 2024, the state killed three men by firing squad last year. The autopsy of one man, Mikal Mahdi, found that the three-person firing squad missed his heart, leading him to suffer a painful death while still conscious.
Since Gregg, the anti-capital punishment movement has achieved some important victories. In 2002, the Court in Atkins v. Virginia found that it is unconstitutional to execute mentally disabled people. In 2005, the Court in Roper v. Simmons held it unconstitutional to impose the death penalty on defendants who were younger than 18 at the time of the crimes of which they were convicted. And in 2008, the Court in Kennedy v. Louisiana established that the death penalty is never a constitutional punishment for a crime that does not lead to someone else’s death.
Each of these decisions, though, was a narrow ruling during a period when a majority of justices were uninterested in treating 18th-century morals as binding 21st-century rules. The Court’s ruling in Atkins simply created an unsettling new area of law about how disabled one has to be to let the state go forward with the death penalty.
Under today’s six-justice conservative supermajority, which prioritizes the historical meaning of a legal text above all else, things are very different. For example, Justice Clarence Thomas has argued that Atkins, which bans the killing of intellectually disabled people, is wrong. Dissenting last term in Hamm v. Smith, a case about a man with an IQ score of around 70 who (successfully) argued that he could not be executed, Thomas argued that “[n]othing in the text or history of the Constitution supports Atkins. It should be overruled.” In Thomas’s view, at common law, only “the severely mentally retarded—whom the common law called ‘idiots’—could not be punished.” Thomas translates “common law idiots” to people with an IQ of 25, meaning that anyone with a higher score could be executed.
Given the current majority’s disdain for people on death row, its approval of the death penalty, and its repeated reliance on the public firing squad precedent, there is little doubt that it would have upheld the livestreamed killing of the Fort Hood shooter. Cases like Glossip are more the norm for this Supreme Court’s death penalty opinions: a divisive ruling with a narrow majority of Republican appointees greenlighting whatever execution method the government is planning.
It is certainly true that the American government at the founding—the same government that allowed slavery—also found it appropriate to kill all kinds of people through all kinds of methods, including public firing squads. But the reason there have been centuries of litigation trying to tease out a humane way to administer the death penalty is that there is no humane way to administer the death penalty. The majority of the justices won’t acknowledge that, so government violence will continue until there’s a change in either the White House or the Court.
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