The Supreme Court’s order in Dunn v. Ray was, in its own ghoulish way, unusually forthright. Supreme Court disputes about death penalty cases tend to be works of indirection, as long as you’re not the person dying.
The real division among the justices is about whether the state’s power to kill prisoners is inherently good or inherently evil, but because precedent and tradition say it’s lawful, the disputes all have to do with the surrounding circumstances or the second-order effects of the exercise of the killing power. Was the person given a full and rigorous legal defense? Are the means and conditions of the scheduled killing too brutal?
So the justices generally make a show of weighing and balancing the issues, even if their established positions mean that they have assigned an overwhelming weight to one side or the other, and even though they consider the other side of the court to be approaching it all cynically. How can any flaws in the trial and appeals process be tolerated, when the resulting punishment is absolutely unacceptable? Why would you be persuaded by evidence of pain and suffering in an execution, when you believe that the state’s highest duty requires it to do whatever is necessary to kill a healthy human being?
Last night, the killing faction stopped even pretending. The case before them wasn’t about whether or not Domineque Hakim Marcelle Ray should or should not be executed by the State of Alabama. It was about whether or not Ray, a Muslim, could have a minister of his own faith in the execution chamber when he died—or, for the Supreme Court’s purposes, whether to allow a lower court to delay his execution long enough for that question to be resolved.
The Eleventh Circuit had already chosen to stay the execution. Ray’s complaint was that the prison, by policy, sent a Christian minister, and only a Christian one, into the death chamber to attend a dying prisoner. Ray had asked for his imam to be present instead, and had been denied. Alabama insisted he have a Christian minister or none at all.
The Eleventh Circuit wrote that Ray’s civil-rights complaint clearly deserved to heard:
All we can say at this stage—indeed what we are obliged to say—is that Alabama’s prison officials apparently have favored one religious denomination to the detriment of all others, that they have made only general claims about their compelling interest, and that they have offered nothing remotely establishing that their policy is narrowly tailored to further that interest.
The Supreme Court offered no rebuttal. It dispensed with the 28 pages of the lower court ruling in two paragraphs, unquestioningly endorsing Alabama’s claim that Ray’s complaint had been filed too late in the process to justify stoping the execution.
The only text that really meant anything was what appeared on the accompanying dissent: “JUSTICE KAGAN, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR join.”
It was a bleak reminder that there is no Supreme Court anymore. There are five justices and there are four justices. The five justices are five because the previous Senate, backed by an anonymous donor spending millions of dollars, refused to do its constitutional duty to consider the previous president’s nominee to an empty seat. That seat was a pure political prize, to be used for pure politics. It gives the majority the power to do whatever it wants, for whatever reason it pleases.
Last night, the five justices did what they wanted. The four justices tried to argue with them, pointing out that their official rationale about Ray having appealed too late was contrary to the facts—that Alabama had only told Ray about the restriction in late January, so that “there is no reason Ray should have known, prior to January 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.”
Kagan concluded:
Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date. I respectfully dissent.
The “respectfully” sat there like a member of the clergy on the wrong side of a locked door. Respect, like religious liberty or reason or legitimacy, is no longer part of the process.
