In the wake of sharp crit­i­cism of sev­er­al con­tro­ver­sial death-penal­ty deci­sions, the five con­ser­v­a­tive jus­tices of the U.S. Supreme Court issued three opin­ions on May 13, 2019, explain­ing their votes in those ear­li­er cas­es. The opin­ions, issued in con­nec­tion with the appar­ent­ly incon­sis­tent orders in reli­gious dis­crim­i­na­tion claims brought by two death-row pris­on­ers and a deci­sion declin­ing to review the case of an Alabama death-row pris­on­er who had chal­lenged the state’s exe­cu­tion process, high­light­ed grow­ing fric­tion and fis­sures with­in the Court.

In a pair of opin­ions issued five weeks after the Court halt­ed the March 28 exe­cu­tion of Buddhist death-row pris­on­er Patrick Murphy, the Court’s three far-right jus­tices dis­sent­ed from the order grant­i­ng him a stay and Justice Kavanaugh and Chief Justice Roberts issued a state­ment seek­ing to explain why they vot­ed to spare Murphy from exe­cu­tion while per­mit­ting the exe­cu­tion of Muslim pris­on­er Domineque Ray to go for­ward. The Court’s dis­parate treat­ment of Murphy and Ray — both of whom claimed reli­gious dis­crim­i­na­tion because their states denied their requests to have non-Christian spir­i­tu­al advi­sors present in the exe­cu­tion cham­ber — had gen­er­at­ed wide­spread con­dem­na­tion across the polit­i­cal spec­trum. In a sec­ond con­tentious case, Justice Clarence Thomas wrote to ​“set the record straight” in response to crit­i­cism from Justice Breyer and the Court’s oth­er mod­er­ate and lib­er­al jus­tices regard­ing a 5 – 4 late-night rul­ing on April 12 to vacate a low­er court stay of exe­cu­tion for Alabama death-row pris­on­er Christopher Price.

In Murphy’s case, Justice Alito, joined by Thomas and Gorsuch, accused defense lawyers of ​“inex­cus­ably dila­to­ry lit­i­ga­tion tac­tics” and com­plained that ​“the great major­i­ty” of appli­ca­tions for stays of exe­cu­tion ​“are almost all filed on or short­ly before the sched­uled exe­cu­tion date … [with] no good rea­son for the late fil­ing.” Staying Murphy’s exe­cu­tion, Alito wrote, ​“countenance[es] the dila­to­ry lit­i­ga­tion [and], I fear, will encour­age this dam­ag­ing prac­tice.” While acknowl­edg­ing that “[t]he claims raised by Murphy and Ray are impor­tant and may ulti­mate­ly be held to have mer­it,” Alito said that “[p]risoners should bring such claims well before their sched­uled exe­cu­tions so that the courts can adju­di­cate them in the way that the claims require and deserve and so that States are afford­ed suf­fi­cient time to make any nec­es­sary mod­i­fi­ca­tions to their execution protocols.”

Justice Kavanaugh and Chief Justice Roberts defend­ed the stay, say­ing that Murphy had not been dila­to­ry. Murphy had made his request to have his spir­i­tu­al advi­sor in the exe­cu­tion cham­ber 30 days before his sched­uled exe­cu­tion, they wrote, and the delay in fil­ing his court appeal was attrib­ut­able to ​“the State’s foot­drag­ging” in response to his request. Kavanaugh also dis­agreed that the stay encour­aged addi­tion­al lit­i­ga­tion, not­ing that with­in five days of the order Texas had revised its pro­to­col to ​“allow reli­gious advis­ers only into the view­ing room.” The stay, he wrote, ​“facil­i­tat­ed the prompt res­o­lu­tion of a sig­nif­i­cant reli­gious equal­i­ty prob­lem … [and] should alle­vi­ate any future lit­i­ga­tion delays or dis­rup­tions that oth­er­wise might have occurred.” Kavanaugh jus­ti­fied grant­i­ng Murphy a stay while allow­ing Ray’s exe­cu­tion to pro­ceed by say­ing the two had pre­sent­ed dif­fer­ent legal claims to the courts. Murphy, he wrote, had argued that Texas treat­ed pris­on­ers of dif­fer­ent reli­gions unequal­ly, per­mit­ting Christians and Muslims to have min­is­ters in the exe­cu­tion cham­ber, while lim­it­ing oth­er pris­on­ers to ​“hav[ing] min­is­ters of their reli­gions only in the adja­cent view­ing room.” By con­trast, he said, Ray had raised a claim under the Establishment Clause of the First Amendment and the reli­gious dis­crim­i­na­tion claim had been raised on its own by a fed­er­al appeals court.

In his state­ment con­cur­ring in the Court’s denial of review in the Price case, Justice Thomas — joined by Justices Alito and Gorsuch — accused death-row pris­on­ers of attempt­ing to manip­u­late the legal process by ​“games­man­ship” by ​“bring[ing] last-minute claims that will delay the exe­cu­tion, no mat­ter how ground­less. The prop­er response to this maneu­ver­ing,” he wrote, ​“is to deny mer­it­less requests expe­di­tious­ly.” Price had chal­lenged the con­sti­tu­tion­al­i­ty of Alabama’s lethal injec­tion prac­tices, offer­ing exe­cu­tion by lethal gas as an alter­na­tive. However, the state argued he had missed the statu­to­ry dead­line for elect­ing that option and that his request was untime­ly. As the war­rant to exe­cute Price on April 12 was expir­ing, Justice Breyer urged his col­leagues to leave the low­er court stay in place until the Court could meet in per­son to dis­cuss ​“sub­stan­tial” pro­ce­dur­al and sub­stan­tive issues pre­sent­ed by the case. When the Court then lift­ed the stay with no dis­cus­sion even after the exe­cu­tion had been called off, Breyer wrote: ​“To pro­ceed in this way calls into ques­tion the basic prin­ci­ples of fair­ness that should under­lie our crim­i­nal jus­tice sys­tem. 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.”

(Amy Howe, Justices spar over death penal­ty, SCOTUSblog, May 13, 2019; Marcia Coyle, Justices’ Feud Over Death Penalty Flares, Exposing Tension and Private Deliberations, National Law Journal, May 13, 2019; Adam Liptak, Tempers Fraying, Justices Continue Debate on Executions, The New York Times, May 13, 2019; Nina Totenberg, Supreme Court’s Conservatives Defend Their Handling Of Death Penalty Cases, NPR, May 14, 2019.) Read the opin­ions in Murphy v. Collier, No. 18A985, and Price v. Dunn, No. 18 – 1249. See Executions and U.S. Supreme Court.

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