On Friday night, the Supreme Court finally ran out of patience with the Trump administration’s attempts to circumvent the appellate process in search of quick victory. With no noted dissents, the justices refused to set aside a district court decision that blocked the execution of four federal prisoners. Attorney General William Barr had hoped to kill these individuals in December and January. He will now have to wait for them to exhaust their appeals.
Each prisoner argues that the federal government has run afoul of the Federal Death Penalty Act (FDPA) in its quest for speedy executions. The FDPA, passed in 1994, has long been a thorn in the side of the Justice Department. It grants the U.S. Marshals Service sole authority over federal executions, rather than the Bureau of Prisons, as the DOJ would prefer. The law also compels the execution of federal prisoners “in the manner prescribed by the law of the State in which the sentence is imposed.”
Frustrated by the limitations of the FDPA, Barr’s Department of Justice decided to unilaterally amend it, giving itself broader leeway to deviate from state law. The DOJ reinterpreted “manner” to mean nothing more than method. In other words, so as long as the government uses the same type of execution required by the state, it can deviate from all the other rules and regulations that the state prescribes. The prisoners argue that “manner” means the procedure used by the state, not just the method of execution. Under their reading, the federal government would still have to follow state law with regard to, for instance, the type of drugs used in a lethal injection, rather than just using lethal drugs.
In November, U.S. District Judge Tanya S. Chutkan sided with the prisoners, blocking the executions. Chutkan explained that the DOJ has adopted a “single implementation procedure” for all federal executions: a single, lethal dose of pentobarbital. This procedure deviates from the “manner” of execution compelled by the states in which each prisoner was convicted. Two states require a three-drug protocol; two others require a physician to be present; one provides the prisoner with a pre-execution sedative. The DOJ, Chutkan ruled, cannot throw all these state rules out the window.
Infuriated by this decision, the DOJ asked the U.S. Court of Appeals for the District of Columbia Circuit to vacate Chutkan’s injunction. The court declined, so the DOJ took its entreaty to the Supreme Court. This request, called “stay pending appeal,” is supposed to be extremely rare. Under virtually all circumstances, parties are expected to appeal to a circuit court, await a decision, and then, if necessary, appeal to the Supreme Court. By asking for a stay pending appeal, the DOJ sought to leapfrog over this process and get an order straight from SCOTUS, cutting out the middle steps. To obtain the right to do this, the DOJ had to prove not only that it would almost certainly prevail in the end, but also that it would be “irreparably injured” if it did not prevail immediately.
Put differently, the Justice Department told the Supreme Court that it would be “irreparably injured” if it could not execute four men in the next few weeks. The notion that these prisoners’ continued existence somehow injures the federal government is bizarre. So is the DOJ’s attempt to end this case by killing the prisoners before they have a chance to argue their case in circuit court. Can the Justice Department really run to SCOTUS and get permission to execute inmates while they are actively pursuing their rights under law?
The answer should obviously be no, but since Donald Trump took office, the Supreme Court’s conservatives have granted an unprecedented number of stays pending appeal. The court has repeatedly allowed the Trump administration to skirt the appellate process in order to implement far-reaching policies that haven’t been fully litigated in the lower courts. This lax attitude has prompted the DOJ to demand more and more shortcuts from SCOTUS. The Trump administration appears to reject the legitimacy of lower court decisions that go against it. And the Supreme Court has been encouraging this posture by giving the administration what it wants on a dramatically accelerated timeline.
On Friday, however, the Supreme Court finally drew the line. The court denied the DOJ’s request for a stay pending appeal in a two-sentence order, noting, “We expect that the Court of Appeals will render its decision with appropriate dispatch.” Justice Samuel Alito, joined by Justices Neil Gorsuch and Brett Kavanaugh, wrote a snitty statement explaining why he believes the DOJ will ultimately win. (He also pointed out “the prisoners’ 17-attorney legal team,” a gratuitous dig at the lawyers fighting fiercely for the rule of law.) But even these conservative justices had to acknowledge that “in light of what is at stake, it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.” (No justice publicly dissented.)
Thanks to Friday’s order, we now know the Supreme Court will draw the line on the Trump administration’s never-ending crusade for quick wins somewhere. It may let Trump enforce asylum bans of dubious legality before an appeals court has decided the merits of the case. But when literal human lives are directly on the line, the Supreme Court isn’t willing to let the DOJ cut corners in a rush to execution. The justices may well permit the executions when the case comes to them through the normal course of appeal. But at least, at this early stage, they resisted the Trump administration’s call to put their thumbs on the scale in favor of death.
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