Neil Gorsuch's First Critical Vote Allowed A Man To Be Executed

It looks like the Supreme Court is back to where it was on the death penalty when Justice Antonin Scalia was alive.

Justice Neil Gorsuch made a difference Thursday in his first 5-4 vote on the Supreme Court, siding with his fellow conservatives to deny a petition from eight Arkansas inmates who sought to stop back-to-back-to-back executions.

Gorsuch’s vote on one of several 11th-hour petitions, in effect, allowed the state of Arkansas to carry out its first execution in nearly 12 years.

Ledell Lee was killed just before midnight Thursday, despite his legal team’s herculean effort to persuade the high court to put off his execution so that he could pursue a potential innocence claim and demonstrate that he was intellectually disabled. Lee was still waging these legal battles because of what one lawyer described as the “abysmal representation” he’d received throughout most of the post-conviction process.

The execution was Arkansas’ first victory, if one can call it that, following a chaotic week of legal moves during which the inmates and several pharmaceutical companies tried to put a stop to the state’s plan. But Arkansas was determined to keep to its killing schedule because some of its supply of lethal injection drugs is close to expiring.

“Arkansas set out to execute eight people over the course of 11 days. Why these eight? Why now?” wrote Justice Stephen Breyer, dissenting from his colleagues’ decision to let the state go forward. Breyer would have agreed to halt the executions and add the case to the Supreme Court’s docket to explore whether the “compressed execution schedule” constitutes cruel and unusual punishment.

In a separate dissent, Justice Sonia Sotomayor questioned the court’s 2015 decision in Glossip v. Gross, in which the conservative majority essentially required death row prisoners to pick their own poison when challenging a lethal injection cocktail.

“I continue to harbor significant doubts about the wisdom of imposing the perverse requirement that inmates offer alternative methods for their own executions,” Sotomayor wrote.

Justices Ruth Bader Ginsburg and Elena Kagan also would have halted all eight executions.

Gorsuch didn’t individually express his views in any of the long string of orders against Lee and the other inmates that the Supreme Court issued late Thursday and after midnight on Friday. But his vote at least suggests that he’s solidly conservative when it comes to the death penalty. On his first opportunity, he also chose not to cast a “courtesy” fifth vote ― something that other justices have occasionally done when four of their colleagues believe that a capital case is so egregious that it merits more attention.

There’s a lot we don’t know about Gorsuch’s views on the death penalty, as The Intercept’s Liliana Segura noted. Much of it remained unexplored during his confirmation hearings. But the subject is generally a tough one for the justices.

The last time the Supreme Court gave a full hearing to a death penalty dispute in Glossip, sparks flew during oral arguments. And when the court announced its ruling, four justices spoke about the case from the bench. The late Justice Antonin Scalia held nothing back, delivering a bizarre screed against Breyer.

Over time, the failings and arbitrariness of the capital punishment system come to weigh heavily on the justices, until some give up on it entirely. Others, like Breyer, begin to look for cases that would allow a deeper dive into the death penalty’s dysfunctions and even call into question its constitutionality.

Still other justices hold firm that the death penalty is constitutional and that courts should defer to states on the nitty-gritty of executing people. If Thursday’s rebuff of the Arkansas inmates is any indication, that’s where Gorsuch falls.

Harvard law professor Ronald Sullivan filed an amicus brief on Thursday urging the Supreme Court to halt Lee’s execution and go the extra step of ending the “failed experiment” of capital punishment once and for all. In a later statement to The Huffington Post, he deplored the justices’ failure to act in the face of Arkansas’ brazenness.

“The Court’s role is to vigorously police overzealous exercises of government power,” Sullivan said. “When execution after execution involves not the most culpable people, but those with the most severe impairments and the worst lawyers, the failure to intervene to affirm the basic human dignity that every person deserves becomes culpable.”

Arkansas’ execution schedule resumes Monday with two planned executions. Four other inmates have won temporary reprieves in state and federal court.

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