Alabama Fails in Supreme Court’s Newest Emergency Docket Test

A US Supreme Court decision preventing Alabama from executing a man with nitrogen gas represents a win for a death-row inmate in a case testing how the justices would deal with an unusual move to quickly undo a final judgment of a lower court.

Over opposition from conservatives Clarence Thomas, Samuel Alito, and Neil Gorsuch, the justices late Thursday denied Alabama’s application to either vacate or stay a June 9 district court order.

None of the justices explained their decision, which for now prevents the state from executing Jeffery Lee.

The denial came two days after Emily Marks, the chief judge of the District Court for the Middle District of Alabama, said nitrogen hypoxia violated the Eighth Amendment’s prohibition against cruel and unusual punishment and permanently blocked the state from using it in Lee’s execution.

The conservative-led Supreme Court regularly handles last-minute requests to stay pending executions or vacate orders temporarily pausing an execution, which for the most part results in decisions against defendants.

But those decisions always deal with challenges in a preliminary posture, not permanent injunctions, said Robert Dunham, the director of the Death Penalty Policy Project, a group that studies policy issues tied to the death penalty.

“There is no prior precedent in the execution context for an action like this,” said Dunham, who added that while the court is often criticized for its conduct on the emergency docket, “this appears to represent the court applying normal procedural rules to death penalty cases.”

Emergency Docket

Lawyers for Lee, who is on death row for a murder and attempted murder conviction, pressed that procedural point as they argued that Alabama’s request represented an extraordinary effort to circumvent the normal appeals process.

“Unlike the preliminary injunction appeals and emergency stays that have dominated cases of this type, this case comes to the Court following a full three-day bench trial on the merits—the first such trial anywhere on the constitutionality of nitrogen asphyxiation,” Lee’s lawyers from Arnold & Porter said.

Georgetown University law professor Stephen Vladeck, a frequent critic of orders on what’s often called the shadow docket, also submitted a friend-of-the-court brief noting that most emergency applications turn on whether plaintiffs demonstrate a likelihood of success to support relief from a temporary injunction.

But Alabama was seeking to wipe out a final judgment without the customary merits review that includes full briefing and oral arguments, Vladeck said.

Alabama, in response, claimed that “this is just the nature of execution litigation (and other forms of emergency litigation, too).”

Following the Supreme Court decision, Alabama Attorney General Steve Marshall issued a statement calling it a “miscarriage of justice.” The state, he said, “is prepared to do whatever is necessary to see Mr. Lee’s lawful sentence carried out.”

Nitrogen Gas

Marks, a Donald Trump appointee, noted in her June 9 ruling that Lee made a sufficient showing that execution via firing squad is feasible and significantly reduces the risk of serious harm as compared to nitrogen gas.

Lee had proposed the firing squad, which is in use in states such as Utah and South Carolina, as an alternative in his challenge to the nitrogen gas method’s constitutionality.

The decision came after Marks originally decided following an April trial that while nitrogen gas inflicted up to three minutes of severe hunger, that it didn’t violate the Eighth Amendment. But the US Court of Appeals for the Eleventh Circuit disagreed, saying such facts “present a substantial risk of serious harm over and above death itself.”

It then set the case back to Marks to address whether Lee’s firing squad alternative passed muster under the Supreme Court’s 2015 ruling in Glossip v. Gross. The appeals court later denied Alabama’s motion for a stay of Marks’ subsequent order.

Alabama adopted nitrogen hypoxia as an execution method in 2018, which involves administering pure nitrogen gas via an “‘industrial-use respirator mask” until the inmate dies, according to a Supreme Court brief. Lee was scheduled to be the eighth person executed through that method in the state and the ninth in the US, according to Alabama.

The Supreme Court in recent years has been receptive to state applications seeking to remove a stay of an execution date to allow them to go forward, said Joe Perkovich, a capital-defense attorney at Phillips Black.

But this time, the Supreme Court appeared to recognize that staying a permanent injunction on a nitrogen gas execution would eliminate its “ability to actually look at the merits, because Mr. Lee would be dead,” Perkovich added.

Alabama can still appeal the merits of Marks’ injunction, which it claimed expanded the bounds of the Eighth Amendment. The recent saga also shows the Supreme Court may be interested in addressing the substance of the dispute soon, said Perkovich.

The court in October denied a bid by Anthony Boyd to pause a pending execution via the nitrogen gas method. That decision prompted a dissent by Justice Sonia Sotomayor, joined by the two other liberal justices, arguing against allowing “the nitrogen hypoxia experiment to continue.”

The case Lovelace v. Lee, U.S., 26-11864, 26-12027, 6/11/26.