“None of these legal questions is frivolous,” Justice Breyer wrote. “What are courts to do when faced with legal questions of this kind? Are they simply to ignore them? Or are they, as in this case, to ‘hurry up, hurry up’? That is no solution.”
Members of the court’s conservative majority have expressed frustration with last-minute stay requests, saying they amount to litigation gamesmanship. “The proper response to this maneuvering is to deny meritless requests expeditiously,” Justice Clarence Thomas, joined by Justices Samuel A. Alito Jr. and Neil M. Gorsuch, wrote in a concurring opinion in a case from Alabama in 2019.
There may have been another reason for moving quickly in the federal cases: Had the court issued even brief stays, there was good reason to think the Biden administration would have halted the executions.
Eric M. Freedman, a law professor at Hofstra University, said the court would pay a price for its failure to address the inmates’ claims. “From a historical perspective,” he said, “the most significant damage caused by the court’s recent performance in death penalty cases may be to its own institutional standing.”
If Justice Breyer sounded rueful, it was because he had just a few years ago held out hope that the court would reconsider the constitutionality of capital punishment. He had set out his arguments in a major dissent in 2015, one that must have been on Justice Scalia’s mind when he made his comments a few months later.
Justice Breyer wrote in that 46-page dissent that he considered it “highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was marred by racial discrimination.
Justice Breyer added that there was little reason to think that the death penalty deterred crime and that long delays between sentences and executions might themselves violate the Eighth Amendment. Most of the country did not use the death penalty, he said, and the United States was an international outlier in embracing it.
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