Monday, May 11, 2015

Mooted by execution: the strange math of Supreme Court capital appeals

The day after the Supreme Court held oral-argument in the same-sex marriage case, it heard
Glossip v. Gross, a case about Oklahoma's lethal-injection drug. But when the case was appealed to the Supreme Court, the case name was Warner v. Gross.

The case name changed because eight days before the Court agreed to hear Charles Warner's appeal, it denied Warner's application for a stay of execution. Warner died later that day by lethal injection.

It may seem bizarre that the Court allowed Warner to die before his appeal got resolved. How did this happen?

It takes only four votes (out of nine) for the Court to agree to take the case (called "certiorari"), but five votes to grant a stay of execution. And only four justices voted to grant Warner's stay: Justices Sotomayor (authoring), joined by Justices Ginsburg, Breyer, and Kagan.

Justice Sonia Sotomayor, author of the Warner dissent
Source:  Wikimedia

The vote-gap between stay and review is not a new problem. Adam Liptak, who covers the Supreme Court for The New York Timesdiscussed the problem in 2007, citing the execution of Luther Jerome Williams. Williams's appeal challenged the constitutionality of the chemicals used in lethal injections. Four justices (Stevens, Souter, Ginsburg, and Breyer) voted to grant the stay of execution. The Court later granted certiorari in a similar case, but in the meantime, Alabama executed Williams.

Tom Goldstein of SCOTUSBlog responded to Liptak's article, writing: "I wanted to comment on [Liptak's] piece, only because it could leave the misimpression that it is possible for death penalty petitioners to secure enough votes to grant certiorari but not enough for a stay, so that the execution would take place before the Court heard the case. If that were true, it would be deeply troubling; thankfully, it is not."

Goldstein's confidence comes from a practice called the "courtesy fifth vote." In a 1986 decision called Straight v. Wainwright, Justice Lewis Powell wrote: "[I]n the past, the Court has ordinarily stayed executions when four Members have voted to grant certiorari . . . ." In other words, a Justice will change his or her "no" vote into a courtesy "yes" vote in favor of the stay of execution.

Where life and death are at issue, erring on the side of caution seems perfectly sensible.

But the courtesy fifth is a practice, not a Supreme Court rule. Although the courtesy fifth was standard practice when William Rehnquist was Chief Justice, the courtesy fifth failed to stop James Edward Smith's execution in 1990. In his dissent in Hamilton v. Texas, Justice William Brennan lamented:
"Indeed, four Members of this Court have voted to grant certiorari in this case, but because a stay cannot be entered without five votes, the execution cannot be halted. For the first time in recent memory, a man will be executed after the Court has decided to hear his claim."
Justice William Brennan, author of the Hamilton dissent
Source:  Wikimedia

Professor Eric Freedman's upcoming article in The Hofstra Law Review discusses other instances in which the courtesy fifth has failed to materialize. Sometimes, a state appellate court or governor will step in to prevent the execution until the Supreme Court can consider the case. But Charles Warner and James Edward Smith, among others, were executed before the Supreme Court had the opportunity to consider the merits of their cases.

The death penalty engenders strong opinions among many legal practitioners, and Supreme Court justices are no exception. (Slate's Dahlia Lithwick wrote about the uncharacteristic lack of decorum during Glossip's oral argument in an article titled: "A Horrifying Day in Court: Death brings out the worst in justices.")

But regardless of how one feels about capital punishment as a policy matter, one principle seems unassailable: Killing someone – even the most abject criminal – is a very serious use of state power, and if the government is going to do it, it had better get it right.

If enough justices on the Supreme Court decide that a capital appeal is worth the full Court's review, that should be ample reason for the Court to stay the execution.


  1. One thing that isn't clear to me. Are there cases that have actually been mooted or just replacement plaintiffs?

  2. One thing that isn't clear to me. Are there cases that have actually been mooted or just replacement plaintiffs?