Toward the end of his appalling opinion allowing Missouri to torture a man to death, Justice Neil Gorsuch decided to settle an old score. “Last-minute stays” of execution, Gorsuch declared on Monday, “should be the extreme exception, not the norm.” This, Gorsuch sought to make clear, was why the court rejected Domineque Ray’s strong religious discrimination claim in February, allowing the Muslim inmate to die without his imam present. Ray, Gorsuch insisted, “waited to bring an available claim until just 10 days before his scheduled execution.” The court had no choice but to spurn his “last-minute” request.
Gorsuch’s post hoc rationalization of the court’s controversial repudiation of Ray spurred withering rejoinders from Justices Stephen Breyer and Sonia Sotomayor. Their debate is unusual—the justices’ internal squabbles over emergency motions rarely spill out into the open like this—and revealing. With Justice Anthony Kennedy off the bench, the Supreme Court is more bitterly divided over capital punishment than ever before. And Ray’s execution has become a flashpoint for the justices’ furious and increasingly public bickering over the death penalty.
The court’s ruling in Bucklew v. Precythe did not involve a dispute over “last-minute” requests for stays of executions. Instead, it centered around Russell Bucklew’s request not to die in excruciating pain. Due to a rare medical condition, Bucklew might suffocate to death on his own blood if given a lethal injection, so he asked to be killed with nitrogen gas instead. By a 5–4 vote, the court rejected his request, ruling that death by gas was not “feasible” in Missouri (even though it is authorized by law) and that Bucklew failed to prove that this method of execution would “significantly reduce his risk of pain.”
Gorsuch, however, didn’t leave it at that. In the final pages of his opinion for the court, the justice went off on a tangent about death row inmates thwarting their executions with “last-minute” appeals. Courts should rarely (if ever) grant a stay of execution just days before a prisoner is scheduled to die, Gorsuch wrote. If a lawsuit “could have been brought” earlier, courts have a duty to toss it out to ensure “the timely enforcement of a sentence.” Gorsuch cited Ray as an example of a death row inmate who waited too long to sue and thus forfeited his constitutional rights.
Why did Gorsuch drag Ray into this unrelated case? Recall that Ray did not challenge the method of his execution, as Bucklew did, but rather demanded that Alabama permit his imam to accompany him in the death chamber. (Alabama offered to provide him a Christian chaplain or nothing.) On Feb. 7, in Dunn v. Ray, the court turned Ray away, concluding that he brought his claim too late. Justice Elena Kagan wrote a sharp dissent joined by the other three liberals. (Her dissent was so powerful, and Ray’s claim so strong, that the court reversed course in a similar case involving a Buddhist inmate last week, after Justice Brett Kavanaugh apparently changed his mind about the rights of religious minorities.)
The court’s decision in Ray is old news, it involves a man who is now dead, and it is legally irrelevant to Bucklew. Yet Gorsuch revived the dispute in a passage that sounds both gratuitous and defensive—a likely effort to respond to Ray’s many critics. By doing so, he essentially invited the liberal justices to continue to take thwacks at the court’s widely criticized action in that case.
In dissent, Breyer gladly accepted this invitation. He countered that, contrary to Gorsuch’s assertion, Ray “brought his claim only five days after he was notified of the policy he sought to challenge.” His lawsuit was not “last-minute”; it was a perfectly punctual response to a new revelation.
Gorsuch shot back that Breyer simply sought to “relitigate Dunn v. Ray,” then launched into a defense of the decision. According to Gorsuch, Ray was at fault because he misread an Alabama statute allowing an inmate’s spiritual adviser to “be present at an execution.” Ray should have guessed that his prison had a secret regulation interpreting this law to exclude all but a Christian chaplain from the death chamber. Moreover, Ray should have compelled the prison to share this confidential rule, which he could not have known about because it was concealed from inmates, at an earlier date.
Convinced? Neither was Breyer, who accused the majority of paying “too high a constitutional price” to ensure Ray’s swift execution. Nor was Sotomayor, who condemned Gorsuch’s “wholly irrelevant” suggestion “that late-occurring stay requests from capital prisoners should be reviewed” as “presumptively suspect.” When the court views these appeals with “an especially jaundiced eye,” Sotomayor wrote, it makes terrible mistakes—as it did in Ray.
“Even today’s belated explanation” for the Ray decision, Sotomayor continued, “rests on the mistaken premise that Domineque Ray could have figured out sooner that Alabama planned to deny his imam access to the execution chamber.” Gorsuch’s contention that Ray should have somehow divined secret prison regulations excluding his imam remains “profoundly wrong.” Perhaps a less rushed and skeptical assessment of Ray’s appeal would’ve persuaded the court’s conservatives that, in fact, his constitutional rights had been flouted.
What can we glean from this war of words, which lays bare a great deal of sniping that usually stays behind the scenes? First, it’s obvious that the liberal justices remain incensed that the conservative majority barely bothered to justify its decision in Ray. (Its one-paragraph decision provided virtually no analysis.) Second, the conservatives believe the liberals misrepresented their actions in Ray, and now—nearly two months later—seek to set the record straight. By doubling down, though, Gorsuch only divulged the deeply flawed logic that led the conservative majority to do what it did in Ray. At the time, its single-paragraph order seemed callous. But perhaps its sophistic victim-blaming was better left unsaid.
There’s a third lesson here: Now that neither bloc of the court must perform moderation in an effort to nab Kennedy’s vote in capital cases, the gloves are off. Even before Kennedy’s retirement, my colleague Dahlia Lithwick wrote of the “nasty tempers and bitter resentments” that emerged during oral arguments in a 2015 death penalty case. The tension and “animosity” between the justices was “palpable and unpleasant,” and it bled over into an acidic, acrimonious set of opinions.
With a Kennedy vote no longer in play, and little reason for either side to reach Kennedy-esque compromises, this dynamic will only grow worse. And with Kavanaugh serving in Kennedy’s stead, the court has veered right on capital punishment. Bucklew and Ray are prime examples of our new death penalty regime—and of an era in which the liberal justices play the role of the court’s conscience, railing in dissent against its increasingly inhuman jurisprudence. Gorsuch may say that he does not wish to “relitigate” Ray. But the four justices who tried to safeguard Ray’s constitutional rights are not finished reminding their conservative colleagues what injustice their zeal for execution has wrought.