Keep in mind, this isn't statutory or even case law requiring how the justices do their job. It's simply the way the court chooses to operate: four votes to take a case, five to stop an execution. CJ Roberts could change that internal policy tomorrow if he wanted, but that doesn't appear likely.Seven of the 12 jurors who convicted Ronald B. Smith in the murder of a convenience store clerk voted to spare his life. When the case reached the Supreme Court, four of the eight justices voted to stay his execution.The arithmetic of capital punishment can seem curious. Mr. Smith was executed Thursday night.Mr. Smith was convicted of murdering the clerk in 1994 in Huntsville, Ala. The jury recommended life without parole, but the trial judge overrode that determination, sentencing Mr. Smith to death.Alabama is the only state that allows such overrides. It is a good bet that the Supreme Court will soon weigh the constitutionality of the practice.That will be too late for Mr. Smith, who came up one vote short on Thursday night, illuminating a lethal gap in the Supreme Court’s internal practices. It takes four votes to put a case on the court’s docket, but it takes five to stop an execution.
Over the years, in fits and starts, some justices have sought to address this anomaly by casting a “courtesy fifth” vote to stay an execution when four justices thought the case worthy of further consideration.
In the 11 years that Chief Justice Roberts has led the Supreme Court, its commitment to such courtesy votes has been inconsistent. Until Thursday, though, it seemed to be on the upswing.And then the dude gets whacked.
The recent trend started with a case on transgender rights. A Virginia school board wanted to stop a transgender boy, Gavin Grimm, from using the boys’ restroom at his high school while the Supreme Court considered an appeal from a decision in Mr. Grimm’s favor.In August, the court’s four more conservative members — Chief Justice Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. — voted to grant a stay. Justice Stephen G. Breyer added a fifth vote “as a courtesy.”Justice Breyer’s motives were not hard to discern. He was concerned about execution chambers, not restrooms. The only case he cited in his concurrence in the transgender case was Medellin v. Texas, a death penalty decision in which he had expressed frustration that “no member of the majority has proved willing to provide a courtesy vote for a stay.”
Last month, Justice Breyer’s gambit seemed to pay off. On Nov. 3, the court considered an application for a stay of execution from another Alabama death row inmate, Thomas D. Arthur. Chief Justice Roberts provided the fifth vote needed to halt the execution.He said he would not ordinarily have favored a stay, but noted that four justices had voted in favor of one. “To afford them the opportunity to more fully consider the suitability of this case for review,” Chief Justice Roberts wrote, “I vote to grant the stay as a courtesy.”On Thursday, in Mr. Smith’s case, the court’s more liberal members — Justices Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — voted for a stay. But this time there was no courtesy fifth vote.Upon hearing that news, Mr. Smith’s lawyers immediately filed a last-minute request for reconsideration.“The court should not permit executions in the face of four dissents,” the motion said, adding that the court’s practices in this area “clash with the appearance and reality both of equal justice under law and of sound judicial decision making.”That motion was denied, too, this time without noted dissent.
It really is satire, almost bordering on the absurd, that justices barter "courtesy" votes when it comes to life and death cases. I understand the horse trading in terms of how decisions get made in other areas of the law, how opinions get assigned, and so on, but I find it incredulous and unconscionable that this game can end in life or death. Or in the case last Thursday night in Alabama, death.
I guess at the Supreme Court, big matters of life and death are mere courtesies.
UPDATE: Justice Breyer blasted the lack of the "courtesy" vote for life in the Alabama case, among other anti-death penalty rantings in an interesting case the court chose NOT to hear.
Continuing his sustained critique of the American capital justice system, Justice Stephen G. Breyer on Monday issued an unusual dissent from the Supreme Court’s decision not to hear the case of a Florida death row inmate who said his conviction had been based on flawed evidence and false testimony.You'll remember inmate Broom from my now-infamous post "Lethal Injection's First Survivor" in September 2009. I say infamous because it continues to be the most widely-read post I've ever written, according to Google analytics, chalking up more than 30,000 unique views and shares over the years.
Justice Breyer did not discuss the evidence against the inmate, Henry P. Sireci. Instead, he again urged his colleagues to reconsider the use of the death penalty, which he said was unreliable, arbitrary and shot through with racism. In the process, he addressed two other recent death penalty cases, from Ohio and Alabama, in which he said the court had also gone astray.He said he would have agreed to hear the case of an Ohio death row inmate, Romell Broom, who had sought to avoid a second attempt to execute him after a first one had gone awry.“Medical team members tried for over two hours to find a usable vein, repeatedly injecting him with needles and striking bone in the process, all causing ‘a great deal of pain,’” Justice Breyer wrote of the first attempt to execute Mr. Broom, quoting a court decision. “The state now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a ‘cruel and unusual’ punishment?”
So while Breyer continues to blast away against the dp in solitary, looks like Ohio will get another shot at Broom, thus affirming the idea that you can indeed try more than once to kill someone in the Buckeye State.