The Stay

I’ve been told by several people that Alito’s joining with the court’s more liberal members to issue a stay in a death penalty case proves that I’m wrong and he’s no Scalia or Thomas. Obviously, it doesn’t. Now, it could mean that on the specific issue of the death penalty he’s a little better than Scalia or Thomas, who as Edward Lazurus has noted are essentially the flip side of the Brennan/Marshall abolitionist position, signing off on virtually every execution virtually irrespective of the merits. But still, this was a non-decisive vote cast to grant a stay in a case that–since the court had already granted two stays in Florida cases where petitioners have raised a similar argument about lethal injection violating the Eighth Amendment–should have been a no-brainier. And as Orin Kerr points out, “Alito may just be extra cautious on his second day on the job. The rest of the Justices know the history of this issue, and Alito doesn’t yet; in a capital case such as thus, obviously the best course in light of possible uncertainty would be to vote to leave the stay in place.” If Alito votes against S/T/R on the ultimate merits of the issue, or votes against them to grant a stay based on a novel theory, that would mean something, but I don’t think this means much.

And, hey, I certainly hope that Kerr is right that he’ll be more liberal that his record suggests. I just don’t see much of any evidence for it.