Even without a written opinion, the Supreme Court’s action Tuesday night clarified a situation that had become increasingly confusing as state courts and the lower federal courts, without further guidance from the justices, wrestled with claims from a growing number of death-row inmates that their imminent executions should be put on hold.
I’m not so sure that this stay ‘clarified’ the situation at all. Sure, the Court has now granted stay in all three of the capital cases that have come before it since it agreed to hear Baze: Emmitt, Norris, and Barry. Interestingly enough, the Court’s order on Monday in Barry v. Mississippi had a short quip about the legitimacy of the lower court’s ruling. Ordinarily, the Court doesn’t specifically mention the reason that it is denying or granting stays. The fact that the Court offered insight into it’s decision is a sign that the winning faction of the Court, presumably the ‘liberals,’ means that those Justices won narrowly and want to make their opinion public. Regardless, the fact that the Court reversed itself in just 36-hours is indicative of the fact that something serious is going on behind the scenes.
Justice Scalia has made it clear that he doesn’t believe lower courts should be granting stays on executions solely on account of the Court’s decision to accept review in Baze. Justice Alito now firmly places himself in the same camp. Based on the Court’s earlier decision to deny stay, at least 3 Justices sided with those two a few days ago. Since Justices don’t have to disclose their vote – be it affirmative or negative – it is likely that one Justice changed his (or her?) vote.
The most obvious guess is Justice Kennedy. He sided with the Court’s liberal wing in Capital Cases in the last term so he could have been the mystery vote. On the other hand, he may have joined the ‘liberal’ faction initially which would mean that a traditionally ‘liberal’ Justice had sided with the ‘conservatives’ at first. If that were the case, my guess is that Justice Stevens sided with the ‘conservatives’ at first. I can’t point to any hard evidence, I just get the vibe that if any ‘liberal’ Justice was going to be a stickler for traditional procedure, he would be the one.