SCOTUS vacancy risks fewer execution stays
Republican senators continue blocking holding hearings on Merrick Garland, whom President Obama nominated to the Supreme Court in March 2016.
That leaves an eight-justice Supreme Court where the law provides for a nine-justice Supreme Court.
Unfortunately, five justices are still needed to stay an execution where a state court has ruled against relief.
Thanks to Chief Justice Roberts — no champion against the death penalty — for adding his vote to amount to five votes for staying the execution of Thomas Arthur, even though he does not agree that Supreme Court review of Mr. Arthur’s case is merited.
SCOTUSblog Amy Howe sheds further light on courtesy fifth votes provided by Supreme Court justices to enjoin adverse action against an appellant pending appellate review. Of course, if such fifth votes were not provided in death penalty cases, we might find death row inmates executed before their cases could be argued before the Suprme Court.