The Supreme Court on Friday night released this short order in response the the Department of Justice’s request to lift an injunction the precludes federal executions scheduled to start early next week:
The application for stay or vacatur presented to THE CHIEF JUSTICE and by him referred to the Court is denied. We expect that the Court of Appeals will render its decision with appropriate dispatch.”
Along with the order comes an interesting little “Statement … respecting the denial of stay or vacatur” authored by Justice Alito and joined by Justices Gorsuch and Kavanaugh. Here is part of that statement:
The Government has shown that it is very likely to prevail when this question is ultimately decided. The centerpiece of the District Court’s reasoning was that Congress referred to the “manner” and not the “method” of execution, but there is strong evidence that this reading is not supported either by the ordinary meaning of these two terms or by the use of the term “manner” in prior federal death penalty statutes. Moreover, the District Court’s interpretation would lead to results that Congress is unlikely to have intended. It would require the BOP to follow procedures that have been attacked as less safe than the ones the BOP has devised (after extensive study); it would demand that the BOP pointlessly copy minor details of a State’s protocol; and it could well make it impossible to carry out executions of prisoners sentenced in some States.
Vacating the stay issued by the District Court for the District of Columbia would not necessarily mean that the prisoners in question would be executed before the merits of their Administrative Procedure Act claim is adjudicated. They remain free to seek review on other grounds. Nevertheless, in light of what is at stake, it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.
The Court has expressed the hope that the Court of Appeals will proceed with “appropriate dispatch,” and I see no reason why the Court of Appeals should not be able to decide this case, one way or the other, within the next 60 days. The question, though important, is straightforward and has already been very ably briefed in considerable detail by both the Solicitor General and by the prisoners’ 17-attorney legal team. For these reasons, I would state expressly in the order issued today that the denial of the application to vacate is without prejudice to the filing of a renewed application if the injunction is still in place 60 days from now.