Welcome back, Deadline: Legal Newsletter readers. The Supreme Court these days is generally in the business of helping executions go forward. But on Thursday night, the court did something notable: It told Alabama no.
Even then, the court wasn’t unanimous. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented from the refusal to let the nitrogen gas execution of Jeffery Lee proceed.
What prompted the rare rejection? In line with the typical shadow docket practice, the court didn’t explain itself. Nor did the dissenters, who merely noted their disagreement.
But a deeper look at the case helps us understand why a majority of the court was unwilling to help the state this time.
A Trump-appointed judge had permanently blocked Alabama from killing Lee using the nitrogen method, due to the Eighth Amendment’s ban on cruel and unusual punishment. In her ruling Tuesday, U.S. District Judge Emily Marks made it clear that she wasn’t stopping officials from executing Lee for the 1998 murders of Jimmy Ellis and Elaine Thompson. Rather, she was only barring the nitrogen method while leaving the state free to use others, such as a firing squad.
Yet the state still pressed to execute Lee with nitrogen on Thursday. The next roadblock it hit was a divided appellate panel, which declined to lift Marks’ injunction. Trump-appointed Judge Robert Luck dissented, stressing the high bar the justices have set for Eighth Amendment claims and accusing Lee of delaying his claim until the last minute. Luck noted that Lee’s victims didn’t get to choose how they died.
The appellate dissent reflects the Supreme Court majority’s view on capital punishment. So, when Alabama filed an emergency application to the justices on Thursday, it felt like the setting of a familiar scene: A lower court halts an execution, only for the high court majority to let it move forward. We have seen this movie before.
Plus, the court previously permitted nitrogen gas executions in Alabama. In the case of Anthony Boyd last year, Justice Sonia Sotomayor lamented the majority’s refusal to extend him what she called “the barest form of mercy,” which she said would have been letting him die by firing squad, which “would kill him in seconds, rather than by a torturous suffocation lasting up to 4 minutes.” She issued a similar dissent the year before in the case of Kenneth Smith, which she concluded “with deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment.”
Lee’s case was different, as his lawyers and a key outside advocate explained to the justices. His lawyers said it was “unlike every previous method of execution challenge that this Court has considered.” They said that unlike prior cases where lower courts issued temporary stays for inmates, this one had a permanent injunction that followed “a full three-day bench trial on the merits — the first such trial anywhere on the constitutionality of nitrogen asphyxiation.”
That key outside advocate was Georgetown University law professor Steve Vladeck, a Supreme Court expert who filed an amicus brief. He said Alabama was trying to do something procedurally that it shouldn’t be allowed to do. “After all,” Vladeck wrote, “allowing Alabama to execute Mr. Lee through a grant of emergency relief would necessarily frustrate this Court’s ability to conduct plenary review of the district court’s final, permanent injunction.”
To be clear, the justices can still reverse Marks’ ruling in a future round of litigation. Or, as the judge noted, the state can execute him by other means. The question on Thursday night was whether the court would make the case moot by letting Alabama execute Lee before the state’s appeal could be fully vetted in an orderly fashion. With that in mind, it would almost be unremarkable that the court rejected the state’s emergency application, if it weren’t for the fact that the justices had previously intervened to help governments conduct executions over lower courts’ objections.
Perhaps the most remarkable thing is that three justices voted to let Lee’s execution go forward as planned, its unconstitutionality notwithstanding. Of course, while none of the justices explained their views, we can presume that the three dissenters are prepared to disagree with the lower courts’ constitutional analysis if and when the case comes back to the high court.
Next week, the justices are set to issue another round of opinions from cases argued this term, as we creep toward the end of June, when some of the court’s most contentious decisions have historically come.
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