The Supreme Court Is Struggling To Conceal A Heated Rift Over The Death Penalty

Kevin Daley | Supreme Court Reporter
  • Caustic disagreements over capital punishment, increasingly a theme of the current term, were on full display at the Supreme Court Monday.
  • In a flurry of opinions, the justices rehashed several late-arriving capital cases from recent months that seem to have triggered tension within the Court. 
  • Such disputes generally set the liberal justices against the conservative majority, which has repeatedly accused death row inmates of bad faith gamesmanship to delay executions. 

Pointed divisions within the Supreme Court over capital punishment reemerged Monday, as the justices issued new opinions rehashing recent last-minute death penalty appeals.

The Court has barely concealed its sharp internal disagreement over late-arriving death penalty cases in recent months.

One such dispute arose in Alabama, where inmate Christopher Lee Price asked to be put to death with nitrogen hypoxia, as opposed to a lethal injection protocol. Price asked the high court to stop his execution on April 11. The Court denied Price’s application over a seething dissent from Justice Stephen Breyer.

Justice Clarence Thomas wrote a separate opinion to “set the record straight” Monday, hitting notes frequently sounded by the conservative justices in recent death penalty cases.

“[Price’s] strategy is no secret, for it is the same strategy adopted by many death-row inmates with an impending execution: bring last-minute claims that will delay the execution, no matter how groundless,” Thomas wrote. “The proper response to this maneuvering is to deny meritless requests expeditiously.”

The justices were scheduled to meet in private conference on April 12 to review pending petitions. Breyer proposed holding Price’s case over for discussion at that meeting in his dissent. In a biting rejoinder, Thomas dismissed that notion out of hand, saying Breyer’s plan was so unconvincing it might not have been an earnest idea.

“Insofar as Justice Breyer was serious in suggesting that the Court simply ‘take no action’ on the state’s emergency motion to vacate until the following day it should be obvious that emergency applications ordinarily cannot be scheduled for discussion at weekly (or sometimes more infrequent) conferences,” Thomas wrote. (RELATED: Trump Administration Will Ask Supreme Court To End Nationwide Injunctions)

Ultimately Price’s execution did not proceed. The state’s death warrant expired at midnight on April 11, and the Court’s decision on his stay application did not issue until the small hours on April 12 because of Breyer’s dissent.

Justices Clarence Thomas (L) and Stephen Breyer (R) testify during a hearing before the House Appropriations Committee on April 15, 2010. (Alex Wong/Getty Images)

Justices Clarence Thomas (L) and Stephen Breyer (R) testify during a hearing before the House Appropriations Committee on April 15, 2010. (Alex Wong/Getty Images)

The justices also returned to a March 28 death penalty dispute involving a Texas inmate denied access to his preferred religious adviser in the death chamber. The inmate, Patrick Henry Murphy, is a practicing Buddhist. Though Christian and Muslim clerics are allowed in the execution chamber, Murphy’s Buddhist chaplain was not permitted entry under state policy.

Murphy claimed that policy violates the Constitution, as well as a federal law called the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Supreme Court stayed Murphy’s execution so he could pursue those claims. The decision was somewhat strange, since the Court allowed Alabama to execute a Muslim prisoner named Domineque Hakim Marcelle Ray just weeks earlier on a 5-4 vote in a case presenting similar facts.

Justice Samuel Alito dissented in the Murphy case, but in an unusual move published an opinion on Monday, six weeks after the stay application was granted. Alito said he wrote separately because “late stay applications present a recurring and important problem and because religious liberty claims like Murphy’s may come before the Court in future cases.” Thomas and Justice Neil Gorsuch joined the dissent.

Alito agreed that the questions Murphy and Ray raised “are important and may ultimately be held to have merit.” Still, he cautioned that death row inmates and their attorneys must litigate in a timely manner, instead of reserving claims for the last minute in a bid to delay executions.

In Murphy’s case, Alito noted that the Texas policy at issue has been in place since 2013. What’s more, Murphy was informed that his Buddhist chaplain would be denied access to the death chamber on March 5, but his attorneys waited until March 26, two days before the execution, to sue in federal court.

“If the tactics of Murphy’s attorneys in this case are not inexcusably dilatory, it is hard to know what the concept means,” Alito wrote.

The Alito opinion prompted a short rebuttal from Justice Brett Kavanaugh, who voted to grant Murphy a stay. Chief Justice John Roberts joined Kavanaugh’s opinion. (RELATED: Kavanaugh Joins Liberals, Says iPhone Users Can Sue Apple For App Monopoly)

Kavanaugh pointed out that Texas amended its policy within five days of the Court’s decision in Murphy’s case. Religious advisers now observe executions from an adjacent viewing room, and are categorically excluded from the death chamber. Because Texas changed its protocol so quickly, Kavanaugh said it was clear Murphy raised the issue in a timely manner, since Murphy asked prison officials about his chaplain’s access a full month before the execution date.

“This Court’s stay facilitated the prompt resolution of a significant religious equality problem with the state’s execution protocol and should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the state’s prior discriminatory policy,” Kavanaugh wrote.

While Kavanaugh believed Murphy’s case warranted relief, he joined Alito in emphasizing that the courts should not allow death row inmates to engage in 11th hour gamesmanship.

“I fully agree with Justice Alito that counsel for inmates facing execution would be well advised to raise any potentially meritorious claims in a timely manner, as this Court has repeatedly emphasized,” Kavanaugh wrote.

Whatever divisions emerged among the high court’s conservatives in the Murphy dispute, all five were united in an April death penalty decision which suggested a reorientation in the Court’s approach to capital punishment.

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