FURTHER UPDATE Friday 12:34 a.m. The Supreme Court, without comment and with no noted dissents, denied all five of the new requests, thus allowing Ledell Lee’s execution to go ahead. (After that, his execution, a 12-minute procedure carried out without apparent incident, was completed four minutes before the death warrant expired.) It was not clear whether the Supreme Court’s actions on Thursday would have any impact on the other scheduled executions.
UPDATED Thursday 9:51 p.m. Lawyers for Ledell Lee and some of the other inmates filed five new documents at the Supreme Court in the evening and, in response to one of them, Justice Alito temporarily delayed Lee’s execution “pending further order.”
Adding a fifth vote to make a majority and allow death-row executions in Arkansas, new Justice Neil M. Gorsuch cast his first votes as a member of the Supreme Court on Thursday evening. In a series of orders, the court turned down pleas by nine inmates to delay their scheduled executions an review their legal claims. Executions were scheduled for Thursday night or in coming days or weeks.
One of the scheduled executions, of inmate Ledell Lee, was to occur Thursday, but was on a temporary hold early in the evening under a federal appeals court order. It seemed likely that the Supreme Court would get involved again in that case as state officials made strenuous legal efforts to be allowed to go ahead with a rapid sequence of executions by a challenged lethal drug protocol — back-to-back executions of eight inmates over an 11-day cycle. Those eight were among nine death-row prisoners named in the several files submitted to the court in the past two days.
Justice Gorsuch has been on the court for less than two weeks, and the decisions that the court has released during that time were settled without his participation because they had developed before he arrived. Typically, though, a Justice does not serve for very long before having to vote on one of the last-minute pleas to postpone an execution in one of the states that still have and carry out the death penalty.
On what appeared to be the main order in the Arkansas cases, the result was a 5-to-4 rejection of the inmates’ requests for postponement of execution and denial of review of their legal claims. Justice Gorsuch was in the majority with the court’s four most conservative members – Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy and Clarence Thomas.
None of those five wrote an opinion explaining their views. In the lead case, Justices Stephen G. Breyer and Sonia Sotomayor – the two members of the court who have grown most skeptical about capital punishment or the way it is performed – wrote separate opinions in protest to the result.
The two other members of the four-Justice liberal bloc, Ruth Bader Ginsburg and Elena Kagan, did not write but cast dissenting votes. Ginsburg and Kagan both favored delay of the executions, and Ginsburg (but not Kagan) voted in favor of review of the inmates’ legal claims.
Justice Breyer dissented on each of the Thursday orders, and he, Justice Kagan and Justice Sotomayor joined in dissenting in one of the orders.
Breyer has filed repeated opinions expressing his concern about what he considers the arbitrary nature of capital punishment, and he repeated that view again in protesting the unusual schedule of hack-to-back executions. He commented that the state apparently had planned such a schedule because the “use by” date on one of the lethal drugs for the execution was about to expire.
Sotomayor argued in her dissenting opinion that the federal appeals court that had ruled against these inmates had misapplied the most recent Supreme Court decision governing the methods by which execution can be done with lethal drugs. She also repeated other objections she has voiced before to the drug execution methods the court majority spelled out in a decision two years ago.