The Supreme Court recently handed down its final decisions in argued cases this term, but its work on the shadow docket continues. We were reminded of that on Friday, with an execution order that split the court along party lines and served as the latest reminder that these emergency appeals can be just as significant as ones that get oral argument and lengthier deliberation.
Indeed, it was a matter of life or death on the docket. More specifically, it was a matter of how that death would come about, with the Republican-appointed majority permitting what Justice Sonia Sotomayor‘s dissent called an “experiment” with human life.
The justice called out her colleagues in the majority for prioritizing “expeditious executions” over reasoned decision-making.
The majority rejected a stay for James Barber, who argued his execution by lethal injection in Alabama risked violating the Eighth Amendment, which bans cruel and unusual punishment. He pointed to a string of botched attempts in the state, where prison officials “spent multiple hours digging for prisoners’ veins in an attempt to set IV lines,” Sotomayor recalled in dissent.
Alabama reviewed its protocol after those botches but offered no explanation or a plan to avoid them in the future. “The State has not only failed publicly to account for what went wrong, but also actively obstructed Barber’s attempts to find out what happened,” Sotomayor wrote in Friday’s dissent, joined by fellow Democratic-appointed justices Elena Kagan and Ketanji Brown Jackson.
Thus the experimental nature of Barber’s execution, which, with the Supreme Court majority’s blessing, went forward before he could get discovery into what happened in the prior botches and what steps the state took to fix its process. Sotomayor said the majority’s unexplained decision to side with Alabama let the state “experiment again with a human life.”
“The Eighth Amendment demands more than the State’s word that this time will be different,” Sotomayor wrote.
“The Court should not allow Alabama to test the efficacy of its internal review by using Barber as its ‘guinea pig,’” she went on, quoting an 11th U.S. Circuit Court of Appeals judge’s dissent that likewise chided the state, and the circuit panel’s Republican-appointed majority, for allowing the execution under these circumstances.
And while those circumstances are certainly worth exploring, they’re also emblematic of a broader pattern on the court, of the GOP majority voting to let executions proceed despite serious open questions. Sotomayor observed this plain fact, deeming the Barber case “another troubling example of this Court stymying the development of Eighth Amendment law by pushing forward executions without complete information.” The justice called out her colleagues in the majority for prioritizing “expeditious executions” over reasoned decision-making. The notion led Sotomayor to cite her previous dissent from the Donald Trump-era executions, where the majority helped the federal government rush through a series of executions at the very end of Trump’s presidency, before Joe Biden, who ran on an anti-capital punishment platform, took over. Friday’s ruling reminds us that, when it comes to capital punishment, the majority is still eager to expedite executions and reject claims of unconstitutional cruelty out of hand.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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