The 5-4 decision was notable for its interesting mix of judges: it saw Chief Justice John Roberts and Justice Brett Kavanaugh join Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor in the majority. It highlights the dilemmas faced by liberals on the court on a bench dominated by conservatives and offers a clear example of how they play defense.
Vote to uphold precedents with which they fundamentally disagree, which the Liberal justices have done in Nanceis a way for them to build bridges with some of their conservative colleagues, at least in relatively discreet cases.
Such appeals to precedent, of course, did not work in last week’s gun or abortion rulings, suggesting that activist conservative judges will ignore or destroy precedent when it suits their policy goals. But, for Roberts and for Kavanaugh, who often vote with the chief justice, such calls may give them cover to part ways with their usual allies.
This is particularly the case when, as in Nancethey have every reason to believe that this will only result in a temporary setback to their long-standing record in favor of capital punishment and their constant efforts to keep the state-administered death machine running.
The Court’s Question decided in the Nance The case was whether challenges to methods of execution could only be brought in federal courts in a particular form, as habeas corpus petitions, and if so, whether such challenges would constitute so-called which are now prohibited by federal law. Federal law imposes a one-year time limit for filing federal habeas corpus petitions and requires persons seeking such relief to bring all claims in one action.
Because states frequently change their execution methods and protocols, or even change them just prior to a particular execution, inmates are unable to challenge those methods within the tight time horizon of federal habeas corpus.
The frequency with which executions by lethal injection are botched has led Michael Nance, like other death row inmates before him, to seek to be put to death by another method.
He suffers from medical conditions that have compromised his veins. As a result, the Georgian execution team would have had to “cut their necks” to establish an intravenous execution line. He also alleged that his longtime use of palliative medication for back pain would diminish the effect of the sedative used in Georgia’s drug cocktail.
Nance claims that under such conditions, lethal injection would be “torturing” and would violate the Eighth Amendment prohibition on cruel and unusual punishment. Instead of a lethal injection, he wants to be executed by firing squad.
While firing squad is allowed in other states (including South Carolina, which announced in March that it was now ready to carry it out), it is no longer available in Georgia. Unlike several other death row states that use more than one method of execution, Georgia law specifies that death sentences can only be carried out by lethal injection.
The cruelty of Nance’s situation is almost unimaginable. To plead in the hope that the courts will allow you to choose how you die among several horrific methods of execution seems dreadful.
Nonetheless, Nance sued under 42 USC 1983, a federal law that allows citizens to sue in federal court for deprivation of rights. Actions under Section 1983 are not subject to strict time limits and time limits. The 11th Circuit Court of Appeals, which heard Nance’s case in December 2020 and again in April 2021, said he could not proceed with his suit.
The court ruled that Georgia does not allow execution by firing squad, so its challenge was actually to prevent him from being executed. As a result, the Circuit Court said Nance could only pursue his claim through a habeas corpus petition. Habeas corpus petitions are designed to be used when prisoners seek to completely overturn their convictions or sentences.
But, the court added, even if he wanted to go that route, it was too late to do so.
Last week, the Supreme Court overturned that decision and agreed that Nance could proceed under Section 1983.
Kagan, writing for the unusual majority alignment, said a habeas petition would only be appropriate if Nance sued to “validate his death sentence” and prevent the state from carrying it out. Instead, Kagan wrote, it “provides the state with a real blueprint for carrying out the death penalty. If the inmate gets the relief sought,” she said, “it is because he persuaded a court that the state could easily use his proposal to enforce it.”
Kagan noted that “Nance’s requested assistance still puts his execution in Georgia’s control.” Unlike his dissenting colleagues (Justices Amy Coney Barrett, Neil Gorsuch, Samuel Alito, and Clarence Thomas), Kagan argued that the appeals courts erred in treating the state’s death penalty law as “immutable “. If Nance were to prevail in its efforts to stop Georgia from using lethal injection, the state could do as other states have done by changing its law to add firing squad or some other method. to its execution arsenal.
A call to precedent provided the cornerstone of Kagan’s opinion. She first cited cases in which the court had previously ruled that method of execution challenges could be brought under section 1983. To rule in favor of Nance and give victory to opponents of the dead was also required, Kagan explained, to respect a line of three. cases in which, in 2005, 2009 and 2015, the court dismissed challenges to lethal injection.
And it was not lost on Kagan that the Chief Justice wrote the majority opinion in Baze vs. Reesthe first of these cases.
In, Bucklew v. Precythethe latest in this series of cases, the court ruled that lawsuits by inmates seeking to force the state to use an alternate method of execution could proceed if the inmate “could identify an alternative method not “currently authorized” by state enforcement law.”
Preventing claims like Nance’s, Kagan concluded, would turn those precedents into a “sham.”
Kagan, as well as Breyer and Sotomayor, had expressed their dissent by LoopBreyer calling the ruling upholding the lethal injection “misguided” and a “violation of the clear order of the Eighth Amendment.”
Yet the very respect of these flawed precedents now provides a safe harbor against the onslaught of conservative judicial activism. It offered a strong counterpoint to Alito’s dismissive attitude towards precedent in last week’s decision to cancel Roe vs. Wade.
This difference suggests that the call for deference to precedent in hopes of steering the court away from hard-line outcomes may work for liberal judges in a limited number of cases where the political stakes are not high.
Now for the bad news for opponents of the death penalty: Nance’s victory will likely be short-lived.
The Supreme Court decision allows him to pursue his legal challenge to lethal injection, but he is unlikely to prevail on the merits. Courts, including a federal court in Oklahoma earlier this month, have not been sympathetic to such challenges. And in all of American history, the Supreme Court has never sided with a convicted inmate in a method of execution case.
In all likelihood, not all procedural wrangling will spare Nance from dying by lethal injection.
Perhaps knowing the fate that awaits Nance, rather than Kagan’s call for precedent, is the real reason Roberts and Kavanaugh joined their fellow liberals. They provided the votes to deliver a temporary victory to opponents of the death penalty and to Nance. But they did so with full confidence that he will nevertheless be carried out.