Supreme Court Watch: More Executions etc.

The Trump Administration, Barr or no Barr, wanted to get in three more executions.  Back in December 2019, the Supreme Court wanted "appropriate dispatch."  Only two (RIP RBG) later wanted to take a case involving proper statutory rules that have split the lower courts. And, then the "hurry up, hurry up" (to quote Breyer's latest) began last summer.

There were multiple issues (procedural, competency, COVID) involved in the latest trio, as seen by set of four orders handed down throughout the day and late in the evening to smooth the way for the execution of Lisa Montgomery.  As usual, there were other concerns that in a fairer system would be dealt with before we reach the Supreme Court as well. For instance, even if a case does not have a legal reason to block an execution, sound policy very well might warrant it. Multiple times, serious concerns that might not reach the extreme level of constitutional error in each case, have arisen to at least warrant no execution. The justices here at first denied a request unanimously, but later a 6-3 split (usual suspects) arose.

Since no justice actually explained their reasoning or what actually was involved in all of this, see this and this SCOTUSBlog summary. The second is for Corey Johnson, two final appeals [Sotomayor/Kagan for one including competency; all three liberals for the other, concerns about executing someone with COVID], again no comment. In that case, we also have the long on death row thing popping up. And, the same split for Dustin John Higgs,* the last person executed (one hopes) by the Trump Administration. This time Breyer and most completely Sotomayor writes a dissent, one that is basically for them all. The majority, even though they reached out to overturn a stay, which by rule is extraordinary (if not quite by now by practice by SCOTUS), did not explain itself. 13 executions in six months, after 3 in around sixty years.  

[The last Supreme Court order dropped around 11PM and he was executed a shortly after 1AM.]

Before the first execution was finalized, we did get some writing regarding a lingering case involving a FDA requirement to get an abortion pill in person, which a district court overturned. Before Barrett, the Supreme Court (with Alito and Thomas dissented) punted. Now, a bit gratutiously since Biden very well might just change the rule, it overturned the stay as litigation continued. Roberts alone said he was just doing it in following his previous rule of letting the government have a lot of discretion during Big V.  So, again, a majority acted in "because we say so" manner. This is wrong, especially in a hot button case. Breyer simply dissented. Sotomayor (with Kagan) went all Sonia from the Bronx.

What the rest "truly" thought is unclear, though a chill wind blows. As Linda Greenhouse noted in her recent column (dropping that Sen. Hawley, a leader of the sedition caucus, was a Roberts clerk): "the justices voted 6 to 3 to grant a bold administration request to skip the intermediate appeals court and lift a district court order that enabled women who want the medication that causes an early abortion to get the pill without an in-person visit to a medical office." They did this repeatedly, a part of faux minimalism that is as common as short opinions these days.

The Supreme Court also had a single full opinion, a unanimous bankruptcy ruling by Alito with Sotomayor concurring to be concerned about the effects of denying a person of their car. We await a Barrett opinion, she not taking part in this one at all. 

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* SCOTUSBlog noted in its summary that the final dispute here was technical.  It is to be noted that Higgs had other arguments, but they were dealt with in before cases.  

Due process can be technical and here there is an important principle in my view -- a federal law was passed providing the rules on how an execution should go.  It follows the law of the state involved, another one designated if the state does not have a death penalty. This respects federalism and local option, which is not trivial.  The problem here was that in the middle of things the state involved no longer had the death penalty. 

The district judge, making sure to note (though coverage of the case makes this unclear) that he is clearly guilty of a heinous crime, said the result was that he as a judge had no power to change the procedure given the law in place.  Clarity on the meaning of the law in question was one thing SCOTUS refused to grant cert to address (for whatever reason, Breyer and Kagan did not join the other liberals to force the point near the end of last term).  Sotomayor flags this as something worth a "few weeks," but at this point, well, you know what that would mean.

But, such things were a bit less clear last summer.  What should have happened was the Trump Administration should have started a year earlier, giving the Supreme Court time to review things. We would have had executions with some more due process. For whatever reason, the Sessions Justice Department did not do that.