To say the least, the conservatives on the Supreme Court have reached some interesting and, yes, frightening decisions in recent death penalty appeal cases. While not totally consistent, it seems clear that the conservative majority considers any appeal focused on the application of the death penalty will not be considered, not matter how valid the claim might be. In their mind, any appeal is simply another tactic for delay. Perhaps even more concerning, though, is that, in their refusal to hear these appeals, conservatives are also signaling to the liberal minority that they will not even engage with their views and arguments about the law.
It all began with a case where lower courts had ordered a stay in the execution of an Alabama man who requested, as a Muslim, that an imam be present for his execution. Alabama offered those being executed access to a Christian minister but refused to provide any religious support for prisoners of other faiths. The conservatives on the court provided the majority in striking down that stay and ordering the execution to proceed without an imam present.
Besides the blatant religious discrimination exhibited by the majority’s ruling, the case was even more concerning because the Court decided to intervene in the Alabama case before the actual appeals were even argued before the lower court, an enormous and unprecedented power grab by the conservatives on the Court.
The backlash to the overt religious discrimination from spiritual leaders of all denominations seemed to shake the confidence of the conservative bloc. The outrage from the legal community was equally strong with one former Solicitor General equating the case to the worst Supreme Court decisions in history, such as Dred Scott, Korematsu, and Plessy v. Ferguson, joining the pantheon of the Court’s most racist decisions.
Just weeks after the Alabama decision, a similar case from Texas reached the Court. In Texas, the state provided both Christian and Muslim spiritual support but this specific death row inmate requested a Buddhist advisor. Roberts, Kavanaugh, and Alito, apparently chastened by the Alabama blowback, joined the liberals in preventing the execution. The state of Texas’ resolution to the problem was to no longer offer any spiritual support to those about to be executed, a solution suggested by Kavanaugh in his opinion granting the stay.
Two cases that were remarkably similar, with the only significant difference being the religious and political pressure exerted after the first one, produced two radically different decisions from the conservative majority. Those differing results highlighted the belief of many that the conservatives were acting out of a political motivation and twisting the law to fit their preconceived notions.
Apparently, that belief may be shared by some of the liberal justices. Soon after, another death penalty appeal came before the Court. This case involved a man who had a medical condition that made it likely that the proposed lethal injection would actually cause tumors in his throat to rupture, resulting in him suffocating on his own blood before the lethal injection killed him. The conservatives reverted to form and denied his appeal with extraordinarily thin and largely unsupportable procedural objections. Remarkably, they went even further, deciding that the state could impose any method of execution that resulted in a cruel and tortuous death as long as the state implemented that method with no intent to cause additional pain. As I wrote in summarizing this case, “In theory, now, there is no Eighth Amendment prohibition on execution by hanging, firing squad, or other barbarous methods as long as the legislature can craft the legislation in a way that shows they are not intending to inflict additional pain. That is not hyperbole. Kavanaugh suggested as much in his concurring opinion”.
Beyond that outrageous reasoning, the opinions in the case continued the bickering between liberal and conservative blocs. In his opinion in the case, Gorsuch tried to provide a rationale for his original decision in the Alabama case that “last minute stays should be the extreme exception, not the norm”, surely a novel theory of applying the law, totally ignoring the consideration lower courts had given in granting the stay of execution, and totally irrelevant to the case being considered. It was an especially inappropriate effort by Gorsuch to try and relitigate the original Alabama decision, whose core legal questions were almost entirely unrelated to this case, and to attack his liberal colleagues. Breyer and Sotomayor responded to that attack, providing withering dissents attacking Gorsuch’s reasoning.
That battle played out again in another death penalty decision handed down late Thursday night. This case, also from Alabama, was similar to the prior case, involving a request to die by nitrogen gas rather than lethal injection in order to avoid what the prisoner claimed would be a painful death. Lower courts granted his stay on Thursday and, then, at around 9pm, the state of Alabama appealed that stay to the Supreme Court. When the Court did not hand down a quick decision, the state postponed the planned execution. Yet, even after that postponement, the conservative majority vacated the stay by a 5–4 vote at around 3am Friday morning, again on rather flimsy procedural grounds. More distressingly, the Court refused to even entertain any arguments from the liberal justices. Breyer, in his dissent, noted that he and his liberal colleagues had been rebuffed by the majority when they “requested that the court take no action until tomorrow, when the matter could be discussed at conference”. The rebuff of the liberals was especially petty and vindictive considering Alabama had already postponed the execution and having a discussion among all the members of the Court on Friday morning would have delayed nothing.
Bryer continued, declaring “Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our court this evening…What is at stake in this case is the right of a condemned inmate not to be subjected to cruel and unusual punishment in violation of the Eighth Amendment”. The conservatives on the Court have already indicated they have no concern for the Eighth Amendment when it comes to death penalty cases. And they have also now declared that any last minute appeals from a death row inmate are, by definition, simply an illegitimate delaying tactic unworthy of any consideration, whether the legal basis for those appeals is valid or not.
The question going forward is whether this open enmity on the Court regarding the death penalty will extend to other significant cases. The number of cases that will be critically transformative for this country in the coming few Supreme Court sessions are manifold. The Census question, partisan gerrymandering, voting rights, abortion, the future of the ACA, and whole host of cases involving Trump’s abuse of power will be on the docket. It is more than likely that many, if not all, of those critical decisions could be resolved with the five conservative justices providing the majority and the four liberals dissenting.
A string of 5–4 decisions, combined with the questionable legitimacy of both Gorsuch and Kavanaugh, will surely be challenged by a large portion of the electorate as political rather than grounded in law and precedent. The conservative majority has already shown its unwillingness to even engage in deliberation of cases with the minority when it comes to the death penalty. If that attitude extends to these other critical cases and the conservatives run roughshod over the liberals in case after case, the enmity on the Court could spill even further out in the open, adding to the view that the Court is now strictly politically motivated.
It will be up to John Roberts to decide whether he is comfortable with that result and the competing pressures of his place in history and the demands of the Republican right and the other conservative justices will be significant. Roberts has already been shown to disregard his own views on the law in order to reach what he deemed to be a politically palatable decision with a complete flip-flop on the individual mandate and Medicaid expansion in the ACA ruling. That “splitting the baby” solution, which outraged the conservative base and seemed, again, to have little basis in existing law and precedent, solidified the impression that Roberts would act politically in order to preserve his legacy. Pulling that kind of maneuver again and again in the coming cases will be harder and harder for Roberts to pull off.
All of which does not bode well for the future of the Court and the country. Like so much in the Trump era, the politics of and on the Court are likely to get far worse before they get better. And, if the clear enmity between the liberal and conservative bloc, which seems to have the same “take no prisoners” that Mitch McConnell had as he destroyed the US Senate, extends beyond these death penalty cases, as is likely, it will also be the death of the last shred of what little faith that the public still has in the legal objectivity and political independence of the Court.
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