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Tensions on the Supreme Court Are Spilling into View

April 15, 2019 in Economics

By Josh Blackman

Josh Blackman

Early Friday morning, a sharply divided Supreme Court ruled that Alabama could execute
Christopher Lee Price. In dissent, Justice Stephen G. Breyer took
an unusual step: He criticized his colleagues for not meeting in
person before resolving the appeal, which had been filed late
Thursday night.

Generally, the justices are extremely secretive about the
workings of the court. But not here. Breyer and his three
progressive colleagues made the conscious decision to peel back the
curtain, and in the process, cast doubt on the majority’s
decision-making process.

Tensions on the post-Kennedy Court are now spilling into view.
Maybe we can mediate. My recommendation: Conservatives should agree
to a three-day delay to handle last-minute capital punishment
appeals; liberals should resist the urge to go public. The court,
and the country, would be better for it.

Every year, the Supreme Court decides about 80 cases. Some take
a year from start to finish. Most death penalty appeals, however,
are resolved in hours, not months. Consider Dunn v. Price.
The prisoner was scheduled to be executed before midnight on
Thursday, April 11. Earlier that day, a district court judge put
the execution on hold for 60 days. She found that Alabama’s
proposed execution protocol would likely be more painful than an
alternative method, known as nitrogen hypoxia. The state appealed.
Several hours later, the Court of Appeals declined to disturb the
lower court’s ruling, given the looming deadline.

Conservatives should
agree to a three-day delay to handle last-minute capital punishment
appeals; liberals should resist the urge to go public. The court,
and the country, would be better for it.

Around 9 p.m. Thursday, the state filed an emergency motion with the Supreme Court.
Early Friday morning, five justices voted to authorize the
execution: Chief Justice John G. Roberts Jr. and Justices Clarence
Thomas, Samuel A. Alito Jr., Brett M. Kavanaugh and Neil M.
Gorsuch. In a single paragraph, the majority suggested that Price
waited too long to pursue his claim. This order on the
court’s so-called shadow docket allowed the justices to quickly
and quietly resolve a controversial matter. Or at least that was
the plan.

But in response, Breyer wrote an impassioned dissent, joined by Justices Ruth Bader Ginsburg, Sonia
Sotomayor and Elena Kagan. He shined light on the shadow docket and
explained the justices’ late-night deliberations. Breyer
“requested that the Court take no action until” its
regularly scheduled conference on Friday. He said the “delay
was warranted” so the justices could hash out the issue in
person. His conservative colleagues disagreed. They wouldn’t
wait a few more hours, even though Alabama …read more

Source: OP-EDS

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