Alito Votes Against Lifting Stay:
From the Associated Press:
  New Supreme Court Justice Samuel Alito split with the court's conservative Wednesday night, refusing to let Missouri execute a death-row inmate contesting lethal injection.
  Alito, handling his first case, sided with inmate Michael Taylor, who had won a stay from an appeals court earlier in the evening. Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas supported lifting the stay, but Alito joined the remaining five members in turning down Missouri's last-minute request to allow a midnight execution.
  It's hard to say if this means anything. Alito may just be extra cautious on his second day on the job. The rest of the Justices know the history of this issue, and Alito doesn't yet; in a capital case such as thus, obviously the best course in light of possible uncertainty would be to vote to leave the stay in place. On the other hand, it's possible first evidence of my theory that Alito isn't going to be as conservative as most people think.
Fulton Westbrook:
OK-I definately think that SA won't be as conservative as people think, but I also think that people will read way too much into this one item. It was bound to happen, the man was toted as the next toe-the-line conservative justice so as soon as he disagrees with Scalia it becomes big news.

Personally I'll wait until a few opinions come out.
2.1.2006 11:13pm
We really shouldn't try to extrapolate from this one data point, tempting as it may be. Having said that, as a conservative I would have felt better if he joined Thomas, Scalia, and Roberts.
2.1.2006 11:19pm
John Jenkins (mail):
It seems eminently conservative to me. There will be of time to execute the guy later if it turns out his claims lack merit, but there's no undoing it if the claims have merit. I think Prof. Kerr's pragmatic explanation is the best one.
2.1.2006 11:19pm
Bill Vigen (mail) (www):
It is interesting to go back to his hearing transcripts and find this quote from Alito: "this whole framework is designed to prevent exactly that: to prevent the conviction of an innocent person and to prevent the imposition of capital punishment on someone who is innocent or on someone who is guilty of the offense but is not deserving to be — to have that penalty imposed on the person." More on my blog if anyone is interested:
2.1.2006 11:28pm
Josh_Jasper (mail):
Well, he *is* Catholic.
2.1.2006 11:29pm
Heck, I think it may be many YEARS, not just many cases, before we really know how "conservative" Roberts and Alito will be.
2.1.2006 11:32pm
Cornellian (mail):
Geez, executions on your second day on the job. That must be stressful.
2.1.2006 11:46pm
anon) (mail):
This is wrong. I donated to much money to get Alito confirmed, and the second he is confirmed he becomes a judicial activist and lets this guy get away with murder. Bush lied to us. Harriet Miers would never have done this. She would have applied the rule of law.
2.1.2006 11:50pm
MikeC&F (mail):
Might Alito become the next Noonan? I'm not Catholic, but if I were, I'd start praying to St. Thomas More.
2.1.2006 11:51pm
Christopher M. (mail):
MikeC&F: I'd go with St. Jude.
2.1.2006 11:55pm
Kovarsky (mail):
Alito had an amusing exchange in the confirmation hearings, where when derided as kind a bloodthirsty impose-the-death-penalty-for-shoplifting type, he basically responded to congress that "you're the crazy people that passed AEDPA."

i'd also add that absolutely nobody who does not know the facts of a death penalty case have any business calling the associated opinion an "activist" one, given AEDPA's mind-boggling complexity.

i sincerely doubt alito's catholocism has to do with his position.

and i concur with professor kerr that there are clues all over the confirmation transcript that alito is not going to hew to the party line the way many political conservatives had hoped (he's not going to overturn the core holding in roe, he's not going to give the president untrammeled constitutional discretion, he's not a strict statutory textualist).

but i disagree that the single data point means absolutely nothing - it means, at the very least, that although alito might ultimately reach precisely the outcomes that political conservatives hope for, he's unlikely to do so as a sycophant.
2.2.2006 12:07am
Chico's Bail Bonds (mail):
If this were free republic, I'd think Anon is serious.
2.2.2006 12:25am
Chris D (mail):
With all due respect to Professor Kerr, I think we're reading a bit too much into this. I would think he just didn't want to rub people the wrong way by voting to overturn the 8th Circuit on his first day. Maybe he just didn't want to find himself on the short end of his first decision. Hell, maybe he even looked at the merits of the argument and came to a principled decision. That doesn't make him any "more" or "less" conservative.
2.2.2006 12:27am
KMAJ (mail):
Which was it ? Newsday had it as 9 - 0.

Alito casts first vote in Missouri death penalty case

February 1, 2006, 4:22 PM EST

WASHINGTON -- New Supreme Court Justice Samuel Alito cast his first vote on Wednesday, as the court refused to give Missouri permission to immediately execute a man who killed a teenage honor student.

The court's 9-0 action was procedural, however, because a stay was already set to expire Wednesday afternoon.

Separately, the court acting without Alito rejected Michael Taylor's appeal that argued that Missouri's death penalty system is racist. Taylor is black and his victim was white.

"The death penalty as practiced in the state of Missouri discriminates against African-Americans such as (Taylor), such that it is a badge of slavery," the justices were told in a filing by Taylor's lawyer, John William Simon.

Taylor had won a stay until Wednesday afternoon in a lower court, and Missouri wanted the justices to lift that stay. It was the second time in two days that the Supreme Court had turned down a Missouri request to allow it to proceed with the execution. The Tuesday vote, without Alito's participation, came hours after he won Senate confirmation to succeed Justice Sandra Day O'Connor and took the oath.

Whether it is 9 - 0 or 6 - 3, it doesn't seem to be much of an indicator as he is still scheduled to be executed today (Wednesday afternoon).
2.2.2006 12:46am
KMAJ, there were actually two votes taken today on the case, one to stay the execution so that the lower court can hear whether MO's death penalty is racist (that's the 9-0 vote), and the other on whether lethal injection is cruel and unusual punishment (that's the 6-3 vote).

Also, for some who think the sky is falling, remember that the 8th Circuit is not a "liberal activist" court, and its vote on the latter issue to stay the execution was 9-1. Of the 11 active judges on the 8th Cir, 6 were nominated by GWBush, 2 by GHWBush, 2 by Reagan, and only 2 by Clinton. Alito siding with them to stay the execution so that the case can be heard is by no means an indication that he's a "liberal activist."
2.2.2006 1:10am
Apologizes, made a slight error in my makeup of the 8th Cir, only 1 was nominated by Reagan, the rest remains the same. Sorry.
2.2.2006 1:26am
Kent Scheidegger (mail) (www):
I wouldn't read too much into a refusal to lift a stay granted by the Court of Appeals on his first day. It's probably just being cautious.

However, I do agree with Orin that Alito is not going to be as conservative as some people think. On the death penalty specifically, my analysis of his capital case decisions showed that he was nowhere near the rubber stamp for the prosecution portrayed in Liu's screed.
2.2.2006 1:48am
The Orginal TS (mail):
I admit I haven't been really following this but didn't the Court just recently grant a stay on the grounds that lethal injection may be cruel &unusual? If so, Alito's vote makes a lot of sense. Whether or not he would have voted to grant a stay in the original case, subsequent cases raising identical grounds ought to be entitled to stays, too. It's not a conservative/liberal issue, it's a stare decisis issue, sort of . . . kinda. Well, it's the same idea, anyway.
2.2.2006 4:25am

It certainly wouldn't surprise me if Alito was concerned with clarity and consistency in the Court's actions, regardless of what doctrinal name such principles fall under. In general, I think judges who have been elevated from a lower court tend to be particularly sensitive to the needs of such lower courts for clarity, consistency, and sometimes a bit of deference.
2.2.2006 8:27am
magoo (mail):
Maybe Justice Alito arrived at his position in this case without regard to his conserative political views or Catholic beliefs, but by applying the law to the facts in a fair, lawyerly, and impartial fashion.
2.2.2006 8:47am
Not a Regular:
The Court, I believe, has recently granted cert on a case, maybe two, where murderers argue that a specific regimen of chemicals used by several states (including Florida and MO) constitutes cruel and unusual punishment. As I understand the cases, they present a very narrow theory that the specific combination of chemicals as used leave the possibility of a murderer being conscious and in extreme pain but unable to move as the final chemical stops his heart. I believe this is the Florida case where execution has already been stayed and cert granted. It is no surprise that Justice Alito would stay an execution which presented or even appeared to present the exact same theory on the exact same execution regimen, at least long enough for his colleagues to weigh in on whether to combine MO and FL. This would also explain why the 8th stayed: the SC has said they are going to consider this challenge in FL, the 8th would naturally stay.

I'm not entirely sure of the details here, but at the very least it appears that the executee argued that he fell squarely within the facts of the FL case. Maybe the Court will disagree and lift the stay after further review, but it is the most normal outcome imaginable for the Circuit Justice to grant a stay if the facts appeared as I suggest. No matter who that Circuit Justice is.
2.2.2006 8:54am
SimonD (www):
I don't know the details, but it may be that this case raises the same issue as the Hill case, in which case it's very possibly appropriate to issue a stay. Remember that there was also a case out of Indiana last week where the Court vacated a stay, so I think the odds are that this is business as usual.

Another possible reason - in Closed Chambers, Edward Lazarus describes Justice White's practise of providing a "gentleman's fifth" - i.e., if there were four votes for cert in a case where the issue wasn't entirely mundane, White would provide a fifth vote to stay the execution, even if he didn't think cert should be granted, because he thought it unseemly and lacking decorum that an issue with the votes for the court to hear should be disposed of in such a way. This is a gentlemanly practise, and one I think I would be inclined to honor, particularly since the court no longer has four members who believe the death penalty is ALWAYS unconstituional, so perhaps Justice Alito read Closed Chambers to see what he was getting himself into.

Lastly, I should add that just because one is an originalist, and must therefore agree that capital punishment is Constitutional (which it clearly is), this is not to close the book on the Eighth Amendment. It should be fairly obvious to all concerned that even if executing a man is Constitutional, providing due process is accorded, there are methods of carrying out that execution which are unconstitutionally cruel and unusual. We cannot boil a man in oil, or pour hot metal into his ears, or hang, draw and quarter him, because when the Eighth Amendment was ratified, those punishments were already considered barbaric. That has obvious consequences for modern jurisprudence; I think a pretty good case could be made that the electric chair might be unconstitutional, within the original understanding of the eighth amendment, because although the punishment itself did not exist in 1791, the mechanism of death most closely resembles a punishment which AFAIK was considered cruel and unusual by 1791 in America, viz. burning alive. I'm not advocating that as a correct answer, just saying iot's possible. That being the case, even as an originalist, one can't simply look at every challenge to the death penalty as frivolous (although they usually will be), and where someone's life is at stake, discretion is the better part of valour.

So that's at least three reasons not to think Alito has sold out already. Have patience, and faith.
2.2.2006 9:03am
Toby Heytens:
I think the best explantions have already been identified: As Orin said, Alito was probably inclined to be "extra cautious on his second day on the job," and, as Medis pointed out, the fact that Alito was a lower court judge for more than a decade might well have led him to think that the Supreme Court should be a little more restrained when it comes to summarily vacating lower court stays.

I'd just add one more thing: Alito may have been at least a little worried that voting to lift an Eighth Circuit stay the same day he was named Circuit Justice for that very court may not exactly be the best way to win friends and influence people.
2.2.2006 9:30am
Since "Alito joined the remaining five members in turning down Missouri's last-minute request to allow a midnight execution," it appears that Alito's vote did not matter to the outcome. In other words -- and correct me if I'm wrong about this, as I know very little about this area of law -- had he voted the other way, it would have been 5-4 for the same result. If this is the case, and if Alito knew that no matter how he voted the same result would be reached, is it possible that he cast his vote on the "liberal" side just so that people wouldn't say, "see, on his second day on the job he's ALREADY voting with Scalia, etc."

Just a thought.
2.2.2006 9:33am
If he was just being cautious, he could have left the decision to his esteemed colleagues, especially since it wouldn't have affected the outcome either way....It seems to me he had an opinion on the matter.
2.2.2006 9:43am
AK (mail):
I'm going to have to go with "it's his first full day on the job, he was probably picking out his office furniture when this case came up, and he doesn't know anything about the case, so he voted to let the lower court ruling stand for now, because it knows a lot more about the case than he does."

There were reports of champagne consumption at the reception after Alito's ceremonial swearing-in. Maybe he was just drunk off his ass.
2.2.2006 9:48am
Lowell R. (mail):

Your reasoning is right, but your conclusion is wrong. Without Alito, the vote to deny the petition was 5-3. If he joined with the conservatives, his name would appear on that orders list as a dissenter. By "voting" with the majority -- if, as you say, he did -- his reputation is untarnished either way. You could either claim he abstained, or that, out of an abundance of caution, he sided with the majority.

Bottom line: BFD.
2.2.2006 10:40am
Lowell R. (mail):
Sorry -- not that he abstained, but rather that he participated, realized he was ignorant/apathetic, and deferred to the majority.
2.2.2006 10:42am
Not a Regular's reasoning was my immediate thought last night -- I wondered if the MO case fell within the case they just took cert on from FL on whether lethal injections as performed there are cruel and unusual.

It is my understanding that FL's combination of chemicals is used in quite a few states that use lethal injections, so we may be seeing more of these. I don't think Alito's vote is anything more than a vote to not do something that is undoable before the FL case be heard, since a decision by the SCt that it is cruel and unusual (a decision I find highly unlikely) wouldn't exactly be able to reverse an execution. If they look at it more in the next couple of weeks and see that it doesn't fall within the Florida case, then they can always lift the stay.

Eminently reasonable on his part in my opinion, and it kinda makes me wonder what Roberts, Scalia and Thomas's reasoning was behind not granting the stay. What's the rush to kill the guy? At most, MO waits a year or so.
2.2.2006 10:58am
Perhaps what Alito &his colleagues are doing by granting this stay is seeking to get the issue of the constitutionality of lethal injection to the SC for an authoritative ruling so that it is not raised in every case
2.2.2006 11:02am
Margaret Romao Toigo (mail) (www):
Supreme Court justices do not have to be "cautious" with regard to their rulings (first, last or any in between) because they do not have to worry about being popular or getting re-elected. And they don't owe anybody anywhere any favors, which is the point of having one branch of government appointed for life instead of elected to a limited term of office.
2.2.2006 12:40pm
eddie (mail):
Good to see that there are no litmus tests for being an acceptable conservative judge. And of course, you all are judging the performance based upon legal precepts and not results.

Is this a serious discussion?
2.2.2006 12:48pm
KeithK (mail):
What's the rush to kill the guy? If his execution has been scheduled for this week it has almost certianly been years since his crime and conviction, with lots of time for appeals. I have no idea what the facts of this case are, but it's not unreasonable to think that possibly Roberts, Scalia and Thomas think that the accused has had more than enough time to appeal his case and that his current claims are baseless. If that's the case, go ahead and execute the man.

BTW, the cruel and unusual claim does not address the question of the man's innocence. The other claim (racist system) may have, but that was rejected unanimously. While I understand the stance that we should take every reasonable care to not execute an innocent man, I think much less caution is needed when the question is about how to execute the guilty.

That said, I don't have any problem with Alito's vote here.
2.2.2006 12:54pm
"BTW, the cruel and unusual claim does not address the question of the man's innocence. The other claim (racist system) may have, but that was rejected unanimously. While I understand the stance that we should take every reasonable care to not execute an innocent man, I think much less caution is needed when the question is about how to execute the guilty."

That's great, but C&U is still expressly in the Constitution, not some penumbra or emanation. I think there should be plenty of caution whenever there's a question of whether or not we're violating someone's rights under the Constitution, regardless of innocent or guilt. Unless there's some amendment I don't know about, the Constitution does still apply to convicted murderers, awful individuals though they be.
2.2.2006 1:27pm
Defending the Indefensible:
I'm going to go ahead and argue that the death penalty is always CRUEL punishment that should not be considered as constitutional.

The principal argument FOR the death penalty is that it acts as a disincentive to crimes so punishable. Lifetime imprisonment is not a sufficient disincentive? How about torture? Well, torture IS cruel, isn't it? Unconstitutionally cruel, even. But is torture worse than death?

Let's consider the punishment of two criminals: one of them who abused his wife for many years, subjected her to torture, the facts are unquestioned. The second man killed his wife.

Which of those men is eligible for the death penalty? The second man, because killing his wife is considered worse than torturing her. So if torture is cruel, then killing is more cruel, and we acknowledge this by setting the higher penalty for killing.
2.2.2006 1:47pm
Do you commenters really think that ANY ethical, respectable judge, let alone the likes of Alito (other than the commenters who believe Alito is a conservative Manchurian candiate/sleeper agent), would adopt an opinion that he didn't hold? Call me naive, but I choose to believe he read the briefs and the other justice's opinions, then made a decision based on the law and equity.
2.2.2006 1:48pm
SimonD (www):
Defending the Indefensible: so your theory is that a punishment whose imposition is regulated by the due process clause (and thus, by making it subject to certain restrictions, is explicitly sanctioned) is, in fact unconstitutional?

It wasn't pursuasive when Bill Brennan advanced it, why in the world would it be now?

I'll agree with you that there are methods of executing a person that are in violation of the Eighth Amendmend, but the actual decision to impose the sanction of execution cannot be unconstitutional, absent further amendment.
2.2.2006 2:06pm
Defending the Indefensible:
Defending the Indefensible: so your theory is that a punishment whose imposition is regulated by the due process clause (and thus, by making it subject to certain restrictions, is explicitly sanctioned) is, in fact unconstitutional?
It depends on the punishment, of course. Due process does not make an impermissibly cruel punishment permissible. Let's consider a statute which literally imposed TORTURE for the commission of certain crimes. Could due process rescue this, or does it unavoidably conflict with the Eigth Amendment? I think the definition of torture is cruelty, don't you? So it has to conflict and it cannot be constitutional.

My argument is that intentionally killing someone is punished more severely than torturing someone, therefore we as a society have determined that intentional killing is WORSE than torturing. So if torturing is cruel, intentionally killing is crueler.

Whether or not you personally find this argument persuasive, it is reasonable, and if you do disagree then please show where you think the reasoning is incorrect. It is not sufficient to point fingers at Brennan's tomb to dismiss my point.
2.2.2006 2:29pm

This is just an aside, but I've always thought the death penalty implications that you can get out of the due process clause are pretty weak. Even supposing it implies that in theory there are some constitutional applications of the death penalty, it doesn't tell us anything about what other constitutional conditions might have to be met before the death penalty can be constitutionally imposed.

So, suppose someone claims that there are no, or almost no, modern cases which in fact meet all the conditions necessary for the imposition of the death penalty. It seems to me that the due process clause doesn't have anything to say about that claim one way or another.

Of course, that proposition would depend in part on the notion that there ARE constitutional conditions for imposing certain punishments, and those conditions would have to refer in part to something besides the purely inherent aspects of a punishment. But the 8th Amendment supports that notion in both parts: not only does it place a constitutional condition on punishment, but it also expressly goes beyond the inherent aspects of the punishment at least insofar as it refers to "unusual" punishments (and I would suggest that "cruel" similarly reaches outside the inherent aspects of the punishment, at least to the motives of the punisher).

So, we can properly ask whether any given application of the death penalty meets the conditions of the 8th Amendment. Accordingly, it seems theoretically possible that no, or almost no, modern uses of the death penalty would meet these conditions.
2.2.2006 2:37pm
Kovarsky (mail):

I could be wrong about this, since it's been awhlie since I've engaged any serious 8th Amendment stuff, but I believe the accepted wisdom is that we shouldn't carefully parse "cruel and unusual" and apply ordinary cannons of superluousness (i.e. what does "cruel" mean in light of the presence of "unusual), because the terms "cruel" and "unusual" always went together. So the exercise of venn-diagramming the two terms in order to identify scenarios not in the intersection isn't really appropriate....

By the way (and this is not addressed to Medis), it is pretty clear that according to any theory of constitutional interpretation other than unrestrained value-imposition, that the death penalty - if perfectly administered (accurately, unbiased, etc.) - is constitutional.
2.2.2006 3:03pm
Duffy Pratt (mail):

Do you similarly argue that severing a thief's hand is constitutional because envisioned by the fifth amendment.

Double jeopardy applies where life or limb is in jeopardy. Due process applies to life, liberty, and property. So why is someone protected by double jeopardy when only his liberty is at stake?

If the argument for the death penalty based on the Fifth Amendment is valid, then how do you reconcile the above?
2.2.2006 3:50pm
Bryan DB:
The constitutionality of the death penalty is not as clear-cut as you think. There's pretty good evidence that the Framers didn't understand what they were doing when they entered the clause "cruel and unusual" into the Constitution. Their intent was to be faithful to the clause as it was incorporated from the English Bill of Rights of 1689, but that clause was most meant to prohibit all excessive penalties - including the death penalty.
2.2.2006 4:16pm
Kovarsky (mail):
Sorry, I should be clearer:

Most originalists believe the death penalty is constitutional because it was accepted at the time of the framing (which is how the originalists approach 8th amendment jurisprudence)

More common-law types will instead operate using the supreme court's test, which ivolves several factors, the most important of which is national consensus and presence of the punishment in the states as expressed through certain objective indicia such as legislation and jury verdicts.

People who self-identify either as originalists or as common-law theorists will probably think the death penalty is constitutional.

I'd agree that originalism's claim to objective understanding is questionable as a theoretic matter, and would therefore - if i was a principled originalist - seriously reconsider my take on the DP's constitutionality. I'm not an originalist though, so I haven't given that particular issue it's due.

good point.
2.2.2006 4:27pm

To clarify, I'm not trying to express and defend a definitive theory of how to apply the 8th Amendment to death penalty cases. Moreover, I am making no attempt to synthesize the ways in which the Court has analyzed and applied the 8th Amendment. I would note as an aside, however, that as I recall, the two Justices who "flipped" between McGautha and Furman--Justices Stewart and White--both disaggregated "cruel" and "unusual" to some degree.

Anyway, my point was really just about what you can get from the reference to "life" in the due process clause. And as I noted, I think the answer is "not much," because that clause says nothing about what other constitutional conditions might apply. For an answer to that question, you need to look at the 8th itself.
2.2.2006 4:33pm
I agree with Eddie's comment. How can granting a stay of execution be seen as a conservative issue? That is mind boggling.

Also, since we are speculating about Alito's motives, I would disagree with Orin that this shows Alito will be less "conservative" than some people expect.

I think he will be exactly as conservative as predicted on issues that really matter to him, like undue deference to the Executive Branch and to government in general. The wrong issues, imo.

I have always maintained that Alito is a political animal above all. When I listened to his confirmation speech, which sounded sort of like an Academy Award acceptance speech, the endless list of people he thanked had me thinking only of how much networking he had done in his life to be indebted to that many people. I would personally have preferred someone who viewed his nomination to the SC as the end result of a distinguished body of work, and not the end product of the efforts of all those whose support he courted on the way up. Politically (in the broad, not party sense), his vote on this first case was the smartest move. His vote didn't change the outcome, he would have been seen by many as a monster if his first vote, on the same day he was confirmed, was to send someone to the other side ("OK, enough of the bubbly, let's get down to business and kill the bastard"), and also, there was the appearance, if not the reality (I don't know the facts) that he was not as fully familiar with the case as those already on the Court, so to pull the lever would have played into the hands of those who want to cast him as a monster. It was a win/win situation for Alito, and he would have been a dummy not to see that.

BTW, does anyone know if the argument against death by lethal injection is that it hurts? Or is it just like when they give you an injection before an operation which knocks you out?
2.2.2006 5:08pm
Kovarsky (mail):
the argument is not that all death by lethal injection is cruel, the argument (as i understand it here) is that this particular mix of toxins leaves the prisoner conscious and very much in excruciating pain while the death-causing agent enters the heart.
2.2.2006 5:37pm
Michelle Dulak Thomson (mail):

BTW, does anyone know if the argument against death by lethal injection is that it hurts? Or is it just like when they give you an injection before an operation which knocks you out?

Well, my argument against lethal injection is that it's plain undignified, and also involves physicians in killing, which isn't and should not be their job. But my understanding is that there are three drugs involved, and the first of them causes unconsciousness before the other two kick in and stop the lungs and the heart working. So, no, it probably doesn't hurt. Much.
2.2.2006 6:03pm
Michelle Dulak Thomson (mail):
Kovarsky has different information from mine, and it's quite possible he's right. Lethal-injection executions in CA are more or less as I described, though I should have added that one of the drugs apparently induces general paralysis. That's supposed to be in there to shut down respiration, but it also conveniently makes any [attempted] agonized contortions invisible.

If we must have capital punishment (which I don't think we should, and certainly think we don't have to), can't we just bring back the firing squad? That was at least certain instantaneous death, and without all this hush-hush medical paraphernalia around it.
2.2.2006 6:14pm
Kovarsky (mail):

I've done some reading on this, and I believe there is a concred (albeit confusing) explanation for what's going on. There are a couple of issues with respect to motions to stay executions:

(1) a "procedural" issue - whether this is a "successive petition" under AEDPA

(2) a "substantive question" - whether a particular manner of lethal injection is cruel and unusual

The Supreme Court recently granted cert on case (A) that most people read as being about the procedural issue only. Then the Seventh Circuit rejected, in Case (B), a motion to vacate based on the substantive question, apparently under the impression that the Supreme's were only undertaking review of Case A to resolve the procedural question. In Taylor, the Supreme's are just clarifying that when they granted cert on case (A), they were addressing BOTH the substantive and the procedural question.

So the real issue in the 6-3 vote was probably not about a willingness to hear constitutionality of the injection procedure per se - but a judgment about the issues the Court was granting cert on when it agreed to hear case (A) (and it affirmed the notion that in case (A), it did intend to resolve the substantive issue).

It is therefore not surprising that Alito went with the majority here, no matter what it was, since the very narrow question was "what was the issue we granted cert on several days ago," hardly an ideological lightning-rod.
2.2.2006 6:40pm
Michelle Dulak Thomson (mail):

Thanks for the summary! You sort it out very neatly. It will be interesting to see what ensues.
2.2.2006 7:02pm
Duffy Pratt (mail):
Firing squads were not instantaneous or perfect. That's why there was a "coup de grace," which is where the presiding officer shot the victim through the head with a pistol afterwards.

Hangings weren't perfect.

Victims used to tip their headsmen beforehand to guarantee a clean cut.

The guillotine worked pretty well, when it was maintained. But that only happenned when they brought out the dignataries. An ordinary person could have the blade drop three of four times before the head fell into the basket.

When Mrs. Rosenburg fried, the first time they through the switch she came through it screaming. The second time, her body was still quivering. The third time, her heart stopped and she was pronounced dead. (As an aside, electrocution and the guillotine were both adopted because they were more "humane."

The gas chamber had some notable failures, where the victim took a long time to die. And lethal injection has not always worked very smoothly either. Sometimes the ex-addict to be executed simply doesn't have a good vein for the doctor to find.

Hell, even the suicide bomber vests don't work all the time.
2.2.2006 7:22pm
shergald (mail) (www):
" first evidence of my theory that Alito isn't going to be as conservative as most people think."

Is it also possible that he has been sensitized by the "Scalito" label and was trumpeting his independenceL he is Alito and not another alterego or Thomas?
2.2.2006 10:43pm
"the argument is not that all death by lethal injection is cruel, the argument (as i understand it here) is that this particular mix of toxins leaves the prisoner conscious and very much in excruciating pain while the death-causing agent enters the heart."

That's just disgusting. Those toxins should immediately be banned. It never fails to amaze me how supposedly civilized people can yawn at such clearly uncivilized things. You don't have to shoot someone to execute them, Michelle. You can simply give an the same injection people get when they are about to have an operation. After that, you can give the lethal injection. When you're out, you don't feel anything. I would like to think Alito voted the way he did because he found lethal injections that hurt objectionable, but somehow, I doubt it. If that was his reason, I, for one, would be thrilled.
2.3.2006 4:15am
Michelle Dulak Thomson (mail):

I'm not "yawning" over this. I'm no more fond of the idea of someone dying in agony, but paralyzed so that no one can see it, than you are. And I reiterate, first that I'm opposed to capital punishment; and second, my two objections to lethal injection: that dying strapped to a gurney is undignified, and that physicians ought not to be made to kill people. The dignity part doesn't seem to bother you (you'd basically "put a murderer to sleep" like a dog), but it does me. And I mean by "dignity" the dignity of the state as well as the dignity of the one to be executed. The condemned ought to have an opportunity for repentance, for defiance, for bravado — to "die like a man," however he takes that. And the state, for its part, if it's going to be in the business of doing people to death, ought to put some sort of solemnity into it, something involving the state symbolically, rather than bringing in a couple doctors administering just exactly what is on offer in Oregon for any terminally ill patient who wants it.
2.3.2006 2:22pm
Defending the Indefensible:
I personally find it difficult to understand the advocation of the death penalty by people who oppose physician-assisted suicide. In the latter case, a person who is suffering desires to die, but this innocent person is told he should suffer rather than die. But when the state kills a convict who does not desire to die, it does not end suffering for anyone. Though it may satisfy some primal urge for revenge, I think this if anything tends to dehumanize the victims (or the families) who glory in the blood of the convict.
2.3.2006 7:46pm
The dignity part doesn't seem to bother you (you'd basically "put a murderer to sleep" like a dog), but it does me.

No, I am sorry if my post left that impression. The dignity thing bothers me a lot. I would always advocate ending someone's life in the most humane, compassionate way possible.

It just seems to me that if you are going to end someone's life, most methods are cruel. People who really love their pets are only able to euthanize them because there are methods by which the dog is gently made to lose consciousness, and then the lethal injection doesn't hurt. One has to specify to the vet that such a method using the right combination of drugs is requested, as even the euthanasia of pets can be painful if done wrong.

I only cited that as it strikes me as the most dignified, painless way of terminating a life. If there is another way more dignified, then I agree with you it should be used.
2.4.2006 5:53am
Michelle Dulak Thomson (mail):

This thread is pretty well moribund. If you want to continue this conversation, can you email me at the linked email address? Thanks.
2.4.2006 4:47pm