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Kavanaugh, Roberts Hold Death Penalty Power After Bitter Term

July 9, 2019, 9:56 AM

The gloves are off at the U.S. Supreme Court after a bitter death penalty term that could be a sign of things to come, with Chief Justice John Roberts and Justice Brett Kavanaugh now in control of how hard a line the post-Anthony Kennedy court will take in capital cases.

With swing vote Kennedy out and Kavanaugh in, a more solidly conservative bloc is taking an austere stance toward death row prisoners’ efforts to halt their executions, while states seek to carry out what they see as long delayed justice.

Though capital punishment has been a hot-button issue at the court for years, it was particularly fraught this term, with liberal frustration showing in late-night dissents over what they see as rushes to the execution chamber, and conservatives equally frustrated with what they see as unwarranted delays and misplaced prioritizing of convicts’ pain at the expense of victims.

It’s a long-simmering tension on the court that “reached a full-boil” this term, said Dale Baich, a capital litigator at the Arizona federal public defender.

Bernard Harcourt, another capital litigator and a Columbia law professor, said that he’s “concerned that these new frictions at the Court may break bad, at the expense of the condemned and their constitutional right to be heard without the taint or shadow of this emerging bitterness.”

But against this bitter backdrop Roberts and Kavanaugh have emerged as the new middle, by occasionally voting for the condemned, or by issuing relatively moderate concurrences.

The New Middle

“For nearly three decades, Justice Kennedy served as a swing vote on the death penalty issues. Now, there seem to be five solid votes to uphold death sentences in almost every case,” said South Texas College of Law Houston professor Josh Blackman.

Still, during heated exchanges, Kavanaugh and Roberts have at times staked out relative moderate positions in contrast to the harder-line trio of Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

One of the court’s most controversial rulings of the term was a solid 5-4 split along ideological lines, but Kavanaugh would write a concurrence in a factually similar case later.

In February, Alabama death row prisoner Domineque Ray wanted his imam with him in the death chamber, but the state only offered a Christian minister who was on the prison staff.

A court divided along ideological lines gave the green light for Ray’s execution without an imam, citing what it said was the last minute nature of the request.

Justice Elena Kagan wrote the dissent for the liberal bloc, calling the state’s practice discriminatory and the majority’s move “profoundly wrong.”

Ray’s execution sparked condemnation “from the entire political spectrum,” said Robert Dunham, executive director of the Death Penalty Information Center.

In a similar case the following month, the high court granted a stay to Buddhist prisoner Patrick Murphy. Thomas and Gorsuch noted at the time that they would have ruled against him.

Kavanaugh wrote a concurrence siding with Murphy, but observing that the state of Texas could just deny ministers to people of all faiths. The state later took him up on that offer, changing its practice and barring all faith ministers from the execution chamber.

The dispute sparked an unusual set of after-the-fact opinions weeks later, revealing that Roberts, alone among the conservatives, agreed with Kavanaugh’s approach.

Softening the Blow

Even in the strongest statement by the court that it was taking a hard-line on capital claims, Kavanaugh threw “quite a big bone” in the direction of death row inmates, said Deborah Denno, a death penalty expert at Fordham Law.

In April 1’s 5-4 decision in Bucklew v. Precythe, Gorsuch wrote the opinion against Missouri death row prisoner Russell Bucklew, joined by the conservative wing in full.

Bucklew argued the state’s preferred lethal injection execution method will cause a gruesome execution, due to a rare disease that will cause tumors growing in his head, neck and throat to rupture. He wants lethal gas instead.

But he can’t show the state’s method “superadds” pain to the death sentence, Gorsuch wrote.

Delay tactics were on the majority’s mind there, too, with the conservatives reasoning that condoning the longtime death row inmate’s argument would invite others to play games with litigation to avoid execution. “The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better,” Gorsuch wrote.

The Bucklew case is “the defining moment for the Supreme Court in terms of cases that arise during death warrants,” Dunham said. He said the “emotional callousness” of the decision was shocking to many. It wasn’t that the court “recognized that executions may unintentionally be painful, it’s that it appeared to accept that executions could be unnecessarily cruel,” he said.

But Kavanaugh’s concurrence seemed designed to “soften the blow” of the ruling, Denno said.

Kavanaugh wrote to emphasize what he called the court’s “additional holding” that alternative execution methods don’t need to be authorized under current state law. It’s an issue that had been uncertain before Bucklew, he said.

It’s a point that “sort of got lost in the shuffle” and is “a pretty big bonus” to capital litigators, Denno said.

Still, Kavanaugh and Roberts fell in line with their conservative colleagues not just in cases like Bucklew but in another case later that month that laid bare the liberals’ frustration.

Death row prisoner Christopher Price raised a similar claim to Bucklew’s and the five conservatives overturned lower court stays in his favor, saying Price also waited too long to bring his claim.

An impassioned dissent from Justice Stephen Breyer for the four liberals called the majority out, leveling charges of arbitrariness and unfairness.

Breyer wrote that the majority acted in a way that “calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”

Breyer’s discussion of the court’s internal procedures in his opinion was an “unorthodox step,” Blackman said. It’s “a signal that the progressive Justices are frustrated, and feel like they have no other choice.”

Meanwhile, capital defenders will continue the “recent trend of narrow, focused challenges” to the death penalty, “with an eye to appeal to the Chief Justice or Justice Kavanaugh,” Baich said.

Roberts peeled away in other death penalty cases this term as well, including casting a tie-breaking vote for an elderly Alabama prisoner with dementia, and for an intellectually disabled prisoner in Texas. Thomas, Alito, and Gorsuch dissented in both cases.

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at