Legitimacy and the Rule of Law: Supreme Court’s Institutional Standing Damaged by Rulings During Federal Execution Spree

From July 14, 2020 through January 16, 2021, the fed­er­al gov­ern­ment exe­cut­ed thir­teen pris­on­ers. It was the most con­sec­u­tive exe­cu­tions by a sin­gle juris­dic­tion since the U.S. death penal­ty resumed in the 1970s and the longest peri­od of time in which an exe­cu­tion spree by any gov­ern­ment went unabat­ed while no oth­er juris­dic­tion executed anyone. 

During that time, the U.S. Supreme Court repeat­ed­ly inter­vened to facil­i­tate exe­cu­tions, despite numer­ous dis­put­ed issues of mate­r­i­al fact and unre­solved nov­el issues of law. The Court ruled in favor of the fed­er­al gov­ern­ment on every con­test­ed motion. It vacat­ed stays and injunc­tions imposed by low­er courts, reach­ing out to decide issues before they had been addressed by low­er appeals courts and can­cel­ing hear­ings that would have allowed those courts to con­sid­er the mer­its of issues that could clar­i­fy the state of the law or estab­lish impor­tant legal prece­dent. Through the exe­cu­tion spree, the Court only once pro­vid­ed any expla­na­tion for its actions.

The Court’s actions through­out the exe­cu­tion spree, legal experts say, pro­duced two casu­al­ties — the rule of law and the Court’s insti­tu­tion­al stand­ing. ​“Giving rea­sons for the exer­cise of force is a fun­da­men­tal pre­req­ui­site for any rule of law,” wrote Georgetown law pro­fes­sor David Cole, the National Legal Director of the ACLU in a com­men­tary in the New York Review of Books. ​“Today’s Supreme Court has failed even that minimal test.” 

“[W]hen it comes to an exe­cu­tion, the buck ulti­mate­ly stops with the United States Supreme Court,” Cole wrote. ​“The jus­tices must decide that an exe­cu­tion is law­ful before a life can be tak­en, and their review is essen­tial if the death penal­ty is to have any legitimacy.”

Two of the Court’s lib­er­al or mod­er­ate jus­tices, Justice Sonia Sotomayor and Justice Stephen Breyer, issued strong dis­sents as the con­ser­v­a­tive bloc on the Court, with­out expla­na­tion, green­light­ed the exe­cu­tion of Dustin Higgs, the final per­son put to death in the exe­cu­tion spree. ​“This is not jus­tice,” Justice Sotomayor wrote. ​“After wait­ing almost two decades to resume fed­er­al exe­cu­tions, the Government should have pro­ceed­ed with some mea­sure of restraint to ensure it did so law­ful­ly. When it did not, this Court should have. It has not.”

In Higgs’ case, University of Texas law pro­fes­sor Steve Vladeck wrote in a Twitter post report­ed in the HuffPost, “[t]he Court didn’t just lift a low­er [court] stay, but issued a sum­ma­ry rul­ing on the mer­its of the case even though the court of appeals hadn’t yet done so. And all to expe­dite an execution.”

DPIC Executive Director Robert Dunham told the HuffPost that the Court’s relent­less­ly one-sided sum­ma­ry deci­sion mak­ing in the thir­teen cas­es ​“looked like rub­ber-stamp­ing. It looked like result-ori­en­ta­tion.” ​“The only way that these case out­comes can be rec­on­ciled with the rule of law,” Dunham said, ​“is if you think the rule of law means, ​‘If the fed­er­al gov­ern­ment wants a pris­on­er dead, the pris­on­er is dead.’”

Hofstra University law pro­fes­sor Eric M. Freedman, one of the nation’s lead­ing experts on fed­er­al habeas cor­pus law, told The New York Times, “[f]rom a his­tor­i­cal per­spec­tive, the most sig­nif­i­cant dam­age caused by the court’s recent per­for­mance in death penal­ty cas­es may be to its own institutional standing.”

The Court’s Summary Rejection of the Prisoners’ Claims

In her dis­sent in Higgs’ case, Justice Sotomayor wrote that after a 17-year hia­tus between exe­cu­tions, “[t]his unprece­dent­ed rush of fed­er­al exe­cu­tions has pre­dictably giv­en rise to many dif­fi­cult legal dis­putes. … Throughout this expe­dit­ed spree of exe­cu­tions, this Court has con­sis­tent­ly reject­ed inmates’ cred­i­ble claims for relief. The Court has even inter­vened to lift stays of exe­cu­tion that low­er courts put in place, there­by ensur­ing those pris­on­ers’ chal­lenges would nev­er receive a meaningful airing.” 

The twelve men and one woman who were exe­cut­ed raised numer­ous legal­ly sig­nif­i­cant claims that were sim­i­lar to claims that had result­ed in relief in oth­er cas­es. Wesley Purkey and Lisa Montgomery both pre­sent­ed affi­davits from men­tal health experts that because of their men­tal ill­ness they lacked a ratio­nal under­stand­ing that they were going to be exe­cut­ed and why. Those facts, if proven, would have demon­strat­ed that they were not men­tal­ly com­pe­tent to be exe­cut­ed. Yet, depart­ing from judi­cial norms requir­ing an evi­den­tiary hear­ing in such cir­cum­stances, the Court issued sum­ma­ry orders allow­ing their exe­cu­tions to go forward.

Alfred Bourgeois and Corey Johnson both had cred­i­ble claims that their exe­cu­tions were uncon­sti­tu­tion­al because of their intel­lec­tu­al dis­abil­i­ty. Dustin Higgs pre­sent­ed a legal­ly nov­el claim relat­ing to the effect on a fed­er­al death sen­tence when the state in which the pris­on­er was sen­tenced lat­er abol­ish­es cap­i­tal pun­ish­ment. Federal law man­dates that fed­er­al exe­cu­tions are to be car­ried out pur­suant to the laws of the state in which the death sen­tence is imposed or of anoth­er state des­ig­nat­ed at the time of sen­tenc­ing. Higgs was sen­tenced to death in Maryland in 2001, but the state abol­ished the death penal­ty in 2013 and fed­er­al offi­cials failed to take steps nec­es­sary to amend the sen­tenc­ing order before sched­ul­ing his exe­cu­tion. The Supreme Court vacat­ed a stay that would have allowed a fed­er­al appeals court time to review that issue, per­mit­ting the fed­er­al gov­ern­ment to put Higgs to death with the legal­i­ty of his execution unresolved.

In addi­tion to the pris­on­ers’ indi­vid­ual claims, the Supreme Court also denied stays or vacat­ed injunc­tions on issues relat­ing to the legal­i­ty and con­sti­tu­tion­al­i­ty of the fed­er­al government’s lethal-injec­tion pro­to­col. This result­ed in pris­on­ers being exe­cut­ed despite low­er court rul­ings that the exe­cu­tion pro­ce­dures vio­lat­ed fed­er­al statutes and that the pris­on­ers were like­ly to suc­ceed on their claims that the use of pen­to­bar­bi­tal to car­ry out their exe­cu­tions was unconstitutionally cruel. 

Justice Breyer’s dis­sent in Higgs mir­rored Justice Sotomayor’s con­cerns. ​“None of these legal ques­tions is friv­o­lous,” he wrote. ​“What are courts to do when faced with legal ques­tions of this kind? Are they sim­ply to ignore them? Or are they, as in this case, to ​‘hur­ry up, hur­ry up’? That is no solution.” 

Breyer, whose dis­sent­ing opin­ion in Glossip v. Gross in 2015 out­lined his rea­sons for believ­ing the death penal­ty may no longer be con­sti­tu­tion­al, under­scored the injus­tice of allow­ing exe­cu­tions to pro­ceed with­out full con­sid­er­a­tion of legal chal­lenges. ​“Given the final­i­ty and sever­i­ty of a death sen­tence, it is par­tic­u­lar­ly impor­tant that judges con­sid­er and resolve chal­lenges to an inmate’s con­vic­tion and sen­tence,” he wrote. ​“How just is a legal sys­tem that would exe­cute an indi­vid­ual with­out con­sid­er­a­tion of a nov­el or sig­nif­i­cant legal ques­tion that he has raised?”

“The U.S. Supreme Court has lost legit­i­ma­cy on this issue,” Dunham said. ​“Maybe with a new pres­i­dent and a dif­fer­ent envi­ron­ment” that will change, he said. ​“But maybe it means that Congress has to amend the law to lim­it their abil­i­ty to disregard it.”