Last January, the Supreme Court held in Hurst v. Florida that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” It wasn’t even a close decision. Eight justices agreed with the result, with Justice Samuel Alito as the lone voice in dissent.
Nevertheless, the Court’s four Republican members voted last night to allow a man to be executed, despite the fact that a jury never determined that he should be killed.
Alabama executed Ronald Bert Smith Thursday night, even though a jury determined that Smith should receive life without parole. That sentence was overruled by a judge, who condemned Smith to die in an apparent violation of Hurst.
Significantly, four justices, Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, voted to grant Smith a stay of execution on Thursday night. Yet, in an eight justice court, four is not enough, and none of the Court’s four Republicans crossed over to save Smith’s life.
This appears to be a departure from the Court’s ordinary practice. Under the Supreme Court’s rules, four justices can decide that the Court will hear a case, but it takes five to issue a stay. In death penalty cases in particular, this can lead to the anomalous result where the Court announces that it will decide an inmate’s fate, and yet the inmate is executed while the case is still pending for want of the fifth vote to grant a stay.
To prevent such a result, a fifth justice typically provides a “courtesy” vote to grant the stay in order to preserve the life of the inmate while the case is still pending.
Admittedly, the Roberts Court at times departed from this practice. Yet, in the aftermath of Justice Antonin Scalia’s death, when it seemed likely that Democrats would gain a majority on the Supreme Court, courtesy votes resumed:
On Nov. 3, Chief Justice Roberts cast “courtesy fifth” vote to spare Thomas Arthur from execution. No such vote tonight for Ronald Smith.
— Adam Liptak (@adamliptak) December 9, 2016
In fairness, courtesy votes are typically granted if the Court decides that it wants to hear a case, and the fact that four justices would have stayed Smith’s execution does not necessarily mean that they wished the full Court to hear the case. Nevertheless, if the four Democrats decided that they did not wish for the Court to hear Smith’s case, a likely reason is because they feared what could happen to the Court’s death penalty precedents once a ninth justice is appointed by President Trump.
If Chief Justice Roberts were still contemplating the likelihood that he will spend the rest of his career in the minority, by contrast, it is much more likely that he would have provided the same sort of courtesy vote that he did on November 3rd.
It’s also worth noting that, last August, Justice Breyer provided the fifth vote to stay a lower court decision permitting a transgender high school student to use the bathroom that aligns with his gender identity. In the Court’s order announcing that decision, Breyer explained that he was doing so “as a courtesy.”
At the time, many Court-watchers speculated that Breyer extended this “courtesy” in the hopes that it would be repaid when death penalty cases reached the Court in the future. If that is the case, Breyer appears to have miscalculated.