Tensions among the Supreme Court's nine justices were high Monday, as multiple statements pointed to a simmering dispute over the death penalty and its application.
These disagreements, which emerged in a set of comments related to previously considered death penalty cases, highlight disagreements both over responding to potentially dilatory death penalty appeals, and the permissibility of the death penalty as it exists in America today.
In one opinion, Justice Brett Kavanaugh saw fit to revive the dormant fight over religious discrimination in the death chamber. In late March, the court stayed the execution of a Texas Buddhist who had been denied access to a chaplain of his professed faith in the execution chamber. This decision, which saw Kavanaugh and Chief Justice John Roberts joining with the court's liberals, was widely perceived as a rebuke to a much-derided previous denial of a stay to a man who had been denied access to a Muslim Imam prior to execution.
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On Monday, Kavanaugh issued a follow-up to his vote in the Buddhist case, arguing that it was distinct from the Muslim case for reasons of timing and the specific kind of claim made by each plaintiff. However, he contended that it was appropriate for the court to delay the execution such that Texas could change its policy, removing all religious officiants from the execution chamber entirely and thus creating equality of treatment.
Justices Samuel Alito, joined by Justices Gorsuch and Thomas, disagreed. In a response to Kavanaugh, Alito argued that the Buddhist plaintiff had engaged in "dilatory litigation tactics," such that rejecting his desired stay was appropriate.
"Because inexcusably late stay applications present a recurring and important problem and because religious liberty claims like Murphy's may come before the Court in future cases, I write now to explain why, in my judgment, the Court's decision in this case was seriously wrong," Alito wrote.
Kavanaugh went out of his way in his own opinion to agree with Alito that in general, "counsel for inmates facing execution would be well advised to raise any potentially meritorious claims in a timely manner." In other words, the conservatives were united on the need for swifter sentences.
The second scuffle similarly concerned undue delay in the case of Christopher Price, sentenced to death for the 1991 murder of Reverend Bill Lynn in Alabama. After 20 years of appeals, Price finally sought to have his method of execution changed, requesting death by nitrogen hypoxia (a method Alabama adopted last March). The state claimed that the time for Price to request the change had passed, a lower-court stayed his execution while the matter was settled, and Alabama appealed the stay to the Supreme Court, which reversed it in April.
This reversal earned the ire of Justice Steven Breyer, who issued a dissent in which his liberal colleagues joined. Breyer called for the matter to be delayed until the following morning, even though it would mean the death warrant would be void.
"To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system," Breyer wrote. "To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate."
Independent of Breyer’s desires, the lateness of the majority's order meant that Price's execution warrant expired. A separate issue, meanwhile, kept the controversy alive, with Price's lawyers separately seeking a hearing before the Supreme Court on the availability of a different drug for use in execution. On Monday, the court declined to hear arguments on that issue.
But Justice Clarence Thomas wrote to respond directly to Breyer's previous dissent. He attacked the seriousness of Breyer’s arguments, but more importantly contended that the disagreement, and subsequent delay of execution, had in fact been the exact outcome that Price had desired.
"Petitioner's strategy is no secret, for it is the same strategy adopted by many death-row inmates with an impending execution: bring last-minute claims that will delay the execution, no matter how groundless," Thomas wrote. "The proper response to this maneuvering is to deny meritless requests expeditiously."
This disagreement between the left and right wing of the court points on the one hand to a difference of perspective. In the eyes of the conservative justices, the absurdly lengthy process of death penalty appeal—which can take decades—signals a need for swift and frequent denial of claims. But in the view of the liberals, the efforts to curtail perceived abuse can run afoul of constitutional rights, most importantly the Eighth Amendment's prohibition on cruel and unusual punishment.
The disagreement may run deeper, as to whether or not the death penalty is itself still permissible. The court explicitly said it was in 2015's Glossip v. Gross, when it found that because the death penalty is constitutional, there must be a method to carry it out. Therefore, the Glossip majority concluded, petitioners seeking to have a method of execution found unconstitutional are obliged to provide an alternative method. This principle prompted a third comment on the death penalty Monday, in the form of a dissent from denial of hearing from Justice Sonia Sotomayor.
"Because I continue to believe that the alternative method requirement is fundamentally wrong—and particularly so when compounded by secrecy laws like Tennessee's—I dissent," Sotomayor wrote.
Sotomayor in particular attacked the court’s decision last month in Bucklew v. Precythe, which reinforced the "alternative method" requirement on originalist grounds. Bucklew struck a critical blow against death penalty opponents who believe the route to abolition passes through the Eighth Amendment; Sotomayor's criticism thereof indicates her side of the court's discontent with that ruling.
The tensions revealed Monday, then, are not merely about the propriety of procedure versus the guarantee of rights. They are also about a court half of which believes that the death penalty is per se constitutional, and half of which believes that the Constitution requires the death penalty be abolished. As the justices continue to draw boundaries around when and how capital offenders can delay their executions, this subtext always remains a determining feature of the outcome.