Justice Gorsuch as the “Swing Vote” on Executions?

Yesterday after listening to the oral argument in Ramirez v. Collier, the Supreme Court’s clergy-in-the-execution-chamber case, I noted that the most important question is not whether the State or the murderer wins on the details of this case but whether we are going to have a permanent new layer of litigation further delaying already badly delayed justice in these cases.

Now we have the transcript of the argument and Amy Howe’s characteristically thorough and unbiased report. What the justices said during the argument is interesting, but perhaps more interesting is what one justice did not say. Justice Gorsuch is usually active in argument, but in this case he said zilch. Given that the other justices may very well be divided 4-4, the decision in this case may rest on him.

Those who love to label justices and crunch numbers tend to rank the justices on a one-dimensional liberal-conservative scale, with the justice in the median chair on that scale being dubbed the “swing justice.” Justice Kennedy hated being called that, I am told. I have long denounced the one-dimensional model of ideology as simplistic and inadequate. It is a truism in social science that “all models are wrong but some are useful,” but the one-dimensional model is less useful than is commonly believed.

Justice Gorsuch is not usually the “swing justice.” That designation tends to go to Chief Justice Roberts or Justice Kavanaugh. The latter is definitely not “swing” in this case. The Chief seemed to be in the same camp, although he is somewhat more difficult to read from oral argument.

We know that last February there were not five votes to lift a stay in an Alabama case where the State had excluded the clergyman from the execution chamber altogether, exactly the solution suggested by Justice Kavanaugh in the Murphy case. Four of the five votes against lifting the stay explained themselves in an opinion, but the fifth was silent. Yesterday’s argument tends to confirm that the fifth was likely Justice Gorsuch. See this post.

But there is a big difference between voting against vacating the decision of another court in a case presented on an emergency basis and voting to reverse a decision going the other way in a case fully briefed and argued. A justice may believe that summary action is unjustified and unwise and still come to the same result upon due deliberation.

As I noted in February, and will repeat here, Justice Gorsuch is the author of that magnificent passage in Bucklew v. Precythe that demonstrates that he “gets it” as much as anyone on the Court (emphasis added):

The people of Missouri, the surviving victims of Mr. Bucklew’s crimes, and others like them deserve better. Even the principal dissent acknowledges that “the long delays that now typically occur between the time an offender is sentenced to death and his execution” are “excessive.” Post, at 16. The answer is not, as the dissent incongruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat. Post, at 18. Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay.

It is hard to believe that the author of this passage would vote to bog down capital punishment further with a new, dense layer of case-by-case litigation of every religious claim that the fertile imagination of the capital defense bar can come up with. I don’t know what to make of Justice Gorsuch’s silence yesterday, but I hope and expect that he will come around in the end.

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