The state of Alabama executed Ronald Bert Smith on Thursday night, after the Supreme Court — split 4-4 along ideological lines — declined to intervene and issue a stay.
Just one month earlier, on Nov. 3, the Court postponed the execution of Thomas D. Arthur just hours before Alabama was scheduled to carry out his death sentence. In this instance, Chief Justice John Roberts furnished the requisite fifth vote required to grant a stay. In that case, Roberts indicated that he did not believe the case merited review, but was casting his vote as a “courtesy” to the four colleagues who supported a stay.
Courtesy votes are informal Supreme Court norms, so it is difficult to talk about them in general terms.
When the Court is reviewing petitions of this nature, five votes are needed to grant a stay. If four judges support granting a stay and believe the case should be reviewed by the Court, typically one justice in the five-member majority will cast a fifth vote to grant.
Justice Antonin Scalia’s death provoked a revival of the practice. Justice Stephen Breyer cast a courtesy fifth vote in August staying a lower court decision allowing a 17-year-old trans student to use the bathroom corresponding to his gender identity at his high school. Breyer, the Court’s clarion death penalty opponent, could have done so in hopes of soliciting a courtesy vote on future capital punishment issues. (RELATED: Supreme Court Blocks Trans Student From Using Boys Bathroom)
Still, none came from Smith in the waning hours of Dec. 8 as the justices wrestled with the decision late into the evening.
His lawyers filed a last-minute appeal at the high court, alleging Alabama’s death penalty scheme is unconstitutional. Alabama is a so-called judicial override state, which allows judges to override jury recommendations and sentence convicts to death. The Court has previously ruled that the Sixth Amendment requires juries, and juries only, to find each fact necessary for a death sentence. Justice Clarence Thomas issued a temporary stay of execution around 8:30, pending a decision by the full Court. The Court denied the stay, splitting four-four along ideological lines.
Smith’s lawyers filed another emergency appeal, protesting the Court’s “inconsistent practices” regarding such petitions. They noted that in cases where four justices support hearing the convict’s underlying appeal, a courtesy fifth vote is usually furnished. The justices again denied the petition for a stay, and Smith was executed.
As University of Chicago law school professor William Baude explains at the Volokh Conspiracy, it’s not clear why the justices elected to treat these two similar cases differently, or that we will ever know their reasoning. One possibility is that there are four votes to grant review in Arthur’s case, but that there were not in Smith’s case. Another possibility is that death-penalty courtesy votes were adopted as a one-time experiment which have failed for reasons unknown to us. Still, some of the possibilities are deeply troubling.
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