Just over a week ago, the Supreme Court denied a stay of execution to an Oklahoma inmate named Charles Warner over the dissent of the Court’s four more liberal members. According to Justice Sonia Sotomayor’s dissent, the drug cocktail that Oklahoma planned to use on Warner was too likely to result in the “needless infliction of severe pain” to be permissible under the Constitution’s ban on cruel and unusual punishments. Sotomayor, however, only garnered four votes for her position, and she needed five to halt the execution.
Nevertheless, on Friday, just over a week after Warner received a fatal dose of the poisonous cocktail Sotomayor criticized in her opinion, the Supreme Court announced that it would hear Warner’s case after all.
Under normal circumstances, Warner’s death would moot his case. Subject only to narrow exceptions, the Supreme Court only has jurisdiction over cases where a decision in a particularly party’s favor is likely to redress an injury that party experienced. And the justices only have the power to destroy life. They do not have the power to resurrect the dead.
Warner, however, is one of four death row inmates who challenged the use of a potentially unreliable sedative that may allow inmates to experience considerable pain during their executions. The other three, at least as of this writing, are still alive.
Though the Court’s decision to hear this case may seem like good news for these three inmates — who will almost certainly be executed absent judicial intervention — there are reasons to doubt that the Court will ultimately rule in their favor. If a fifth justice agreed with Sotomayor that this challenge to Oklahoma’s execution protocols has merit, it would be very odd for that justice not to join Sotomayor in voting to stay Warner’s execution. The fact that all five of the Court’s conservatives allowed Warner to be executed suggests that they see no problem with Oklahoma’s practices.
Additionally, the Court appears to have departed from an informal practice it has historically used in death penalty cases. It takes five justices to grant a stay of execution, but only four to grant a petition asking the Court to review a case. To prevent the incongruous circumstance where the Court announces that they will hear a particular inmate’s case only to have that case become moot when the inmate is executed, however, a fifth justice typically grants a “courtesy” vote to stay an inmate’s execution when four justices agree to hear that inmate’s case.
To date, however, the Court has not stayed the three remaining inmates’ executions, one of whom is scheduled to be executed on Thursday. If a majority of the Court is willing to allow a man to be killed while his case is currently pending before the justices, that is not a good sign that there are five votes to halt Oklahoma’s execution practices.
The Supreme Court stayed the three remaining inmates’ executions on Wednesday. Their stay order, however, provides that “it is hereby ordered that petitioners’ executions using midazolam are stayed pending final disposition of this case.” Given this language, Oklahoma might argue that they could still execute the inmates provided they use a drug other than midazolam when they do so.