The Supreme Court on Tuesday night split 5-4 in denying an execution stay to a Louisiana death row prisoner. It’s unsurprising that the court’s three Democratic appointees dissented — but the fourth dissenter, Justice Neil Gorsuch, is more of a surprise at first glance.
The Trump appointee isn’t known for siding with death row prisoners. Indeed, he has joined with Justices Clarence Thomas and Samuel Alito to take stronger positions against prisoners than have the other three Republican appointees, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett.
So, what explains Gorsuch’s dissent in the case of Jessie Hoffman?
Unlike the three Democratic appointees — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, who merely noted without explanation that they would’ve granted Hoffman’s stay application — Gorsuch explained himself.
And that explanation can be boiled down to one word: religion.
Gorsuch recounted that Hoffman, a Buddhist, argued that the state’s nitrogen gas execution method would violate his religious rights because, he said, it would interfere with his meditative breathing as he died.
“No one has questioned the sincerity of Mr. Hoffman’s religious beliefs,” Gorsuch wrote in criticizing the district court for rejecting Hoffman’s claim based on the court’s own finding about “the kind of breathing Mr. Hoffman’s faith requires.”
Gorsuch likewise faulted the 5th U.S. Circuit Court of Appeals for “fail[ing] to confront the district court’s apparent legal error.” The justice said he would’ve granted Hoffman’s stay application and sent the case back to the lower court to address the religion claim.
But a majority of the court wasn’t persuaded, and even the three Democratic appointees didn’t join Gorsuch’s dissent. Whatever all the justices were thinking, the simple 5-4 math meant the execution was one vote short of being halted. Perhaps a bigger question than the reason for any disagreement among the dissenters is what the majority’s reasoning was. But as often happens on the court’s so-called shadow docket where the justices decide emergency litigation, the majority declined to explain itself. While such explanation is always useful, Gorsuch’s separate writing in this case would’ve made seeing the majority’s explanation for why it disagreed with him all the more illuminating here. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
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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