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Belated Liptak Love


I’m a few days behind on my weekly rundown of Adam Liptak’s Sidebar column. I blame law school (I know what you’re going to say. I know I’m a third year. Apparently my professors just don’t know that). Anyway, here we go.

This week, Liptak takes on one of the many perversities in the way the Supreme Court handles the death penalty. Perversity #1: it takes four votes for the Supreme Court to grant cert on a case (to decide to hear it). But it takes 5 votes to stay an execution.

Consider the case of Luther J. Williams, who was put to death on Aug. 23 in Alabama. Four justices had voted to stay the execution.

Mr. Williams’s appeal included a challenge to the constitutionality of the chemicals used in lethal injections, which have the potential to cause excruciating torture if administered improperly. A month after his execution, the court agreed to hear that question in another case.

There are differences between the case the Supreme Court accepted and Williams’, but Liptak’s point remains: why is it that it takes only 4 votes to get the Supreme Court to hear your case, but 5 to get them to keep you alive while they consider whether to hear it or not? [The Supreme Court last week denied Williams’ now posthumous petition for certiorari, noting that the case is now moot. Because he was executed.]

Even Chief Justice John Roberts has acknowledged the strangeness of the practice:

At his Supreme Court confirmation hearing two years ago, Judge John G. Roberts Jr. was asked what he would do “if you had four other justices now voting for a stay of execution?”

“Do you feel, as chief, you should do the courtesy,” Senator Patrick J. Leahy, Democrat of Vermont, asked, “and kick in the fifth one?”

“I don’t want to commit to pursue a particular practice,” Judge Roberts said. “But it obviously makes great sense.”

“You don’t want to moot the case by not staying the sentence,” he added.

But of course he said that when he was angling for 51 senate votes to confirm him, around the same time as he was saying judges should be umpires. Things are different now.

It’s Justice Stevens, the man who refuses to think of himself as a liberal, who has articulated a more rational approach:

Justice Stevens drew a lesson from the experience. Both justice and efficiency would be served, he wrote, by routinely staying all executions until the court can hear a condemned inmate’s first petition for a writ of habeas corpus. That would “accord death row inmates the same, rather than lesser, procedural safeguards as ordinary litigants.”

It makes perfect sense; it’s both just and efficient (two things that don’t go together very often. See AEDPA’s effect on the death penalty). But only Justice Ginsburg has endorsed it. Where’s Chief Justice’s quest for unanimity now?

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