Home > Perspective

No Cause for Alito Worry

by John F. Tamburo, Editor in Chief, Publisher
Originally Posted: 2/2/2006 10:10:26 AM

Everyine is reporting that Justice Sam Alito made his first vote in support of a stay of execution for a death row inmate in Missouri.  Wrong!  The true facts are:  (i) Justice Alito is the circuit Justice who hears emergency petitions for the area of the country that includes Missouri; (ii) Justice Alito received the petition and referred it to the full court; (iii) We don’t know if Justice Alito voted on the petition; (iv) Even if Justice Alito voted in favor of the petition, it would not have changed the result; (v) There is another similar case that may affect this one; and (vi) The court was not asked to grant a stay of execution, it was asked, in an unusual and rarely-granted petition, to remove the stay set by a lower court.

Justice Alito received his assignment as Circuit justice for the 8th Circuit.  In those cases where a single Supreme Court justice may act, Justice Alito sees the petition first.  In death penalty cases and urgent matters, the Circuit justice, as a matter of custom, refers the petition to the entire court for consideration.  The court considers these emergency motions in a manner different from the big cases where they sit upon the bench of the court and hear arguments from lawyers in morning suits and hand out quillpens.

The court’s order states, in full:

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eighth Circuit on February 1, 2006, presented to Justice Alito and by him referred to the Court, is denied.
The Chief Justice, Justice Scalia, and Justice Thomas would grant the application to vacate.

Order of the Supreme Court, February 1, 2006, case 05A705.

"The press is inferring that Justice Alito voted to uphold the stay."

This does not indicate that Justice Alito did anything more than refer the petition to the full court.  The press is inferring that Justice Alito voted to uphold the stay.  It should be noted that in a previous case, 05A699, the State of Missouri asked for the identical relief for the same prisoner, and the entire court voted not to vacate the stay of execution.

But, since we don’t know about the proceedings more than what’s written above, let’s assume that Judge Alito voted in both cases to deny the petition to undo the stay.  We know also that he took no part in a third petition in the same execution, where the court unanimously denied a stay of execution, case 05A694.  Yes, folks, that’s right.  The Supreme Court had three seperate appeals of the same case, two from Missouri and one from the prisoner.  The prisoner got no relief from the Supreme Court.  The Eighth Circuit decided to grant a stay based on a legal argument.  That argument is that lethal injection is cruel and unusual punishment.  Two Florida inmates recently had their executions stayed while the Supreme Court uses these cases to clarify the issue, plus clarification of last-minute capital appeals.

"Because of the Florida cases, the majority voted to not lift the stay of this execution, twice, once unanimously."

Because of the Florida cases, the majority voted to not lift the stay of this execution, twice, once unanimously.  It’s only fair if you look at it objectively.  What if the court deicdes that lethal injections are unconstitutional?  I don’t think this will happen, but it is not an impossible holding by the court.  Justice in this case is best served by the 8th Circuit’s stay.  Even if Justice Alito had voted with Justices Roberts, Scalia and Thomas, it would not have changed the result.  And frankly, if the Supreme Court had already granted review in other cases on the same legal theory, I agree with the majority in this specific case.

Finally, the court was being asked to kill a stay of execution of a lower court, not to affirmatively grant a stay.  Consider the fact that the appellate court is closer to the facts of the case.  The Supreme Court’s usual posture is to not get involved except to remedy a miscarriage of justice.  The State of Missouri was asking the Supreme Court to act on its behalf to remove a stay and enable it to execute sentence.  Missouri asked twice; Justice Alito voted twice. Both times, Justice Alito voted (assuming he did vote) the normal Supreme Court tendency to not get involved.  Earlier in the day, the Supreme Court, with Justice Alito not voting, the Supreme Court did the same thing, not getting involved, when it refused to grant stay to the defendant.

"This vote says absolutely nothing about how Justice Alito will vote as his service continues."

In summary, This vote says absolutely nothing about how Justice Alito will vote as his service continues.  This is a specific case, with three specific appeals of the same death sentence.  Justice Alito voted properly when you consider all of the legal proceedings in this sentence and elsewhere.  So ignore the media’s "he’s really a liberal, nyah, nyah!" chorus.