Well before he was an associate justice of the U.S. Supreme Court, Neil Gorsuch concluded in his 2006 book, The Future of Assisted Suicide and Euthanasia, that, as far as the law was concerned, the intentional taking of a human life was always wrong and assisted suicide was a practice that could not be legally supported. Late Thursday night, Gorsuch cast the deciding vote that would put to death eight men in Arkansas over the course of 11 days.
Within minutes of the Court releasing a series of orders denying a stay of the planned executions, Arkansas executed Ledell Lee, a Black man who maintained his innocence and claimed his attorney was drunk during his trial. More will undoubtedly soon follow.
It was Gorsuch’s first vote on the Court.
For years, the Court’s more liberal justices have been making the case—both in dissenting opinions and at public speaking events—that capital punishment is unconstitutional. Even Justice Anthony Kennedy had started to express skepticism, questioning the effect of solitary confinement in the 2015 case of Hector Ayala, who was executed by the state of California after spending more than two decades on death row.
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Justice Stephen Breyer reiterated Kennedy’s concern in his Thursday dissent from the decision to allow the Arkansas executions to move forward.
“Arkansas set out to execute eight people over the course of 11 days. Why these eight? Why now?” Breyer wrote. “The apparent reason has nothing to do with the heinousness of their crimes or with the presence (or absence) of mitigating behavior. It has nothing to do with their mental state.”
“It has nothing to do with the need for speedy punishment. Four have been on death row for over 20 years. All have been housed in solitary confinement for at least 10 years,” he continued.
Breyer concluded, “Apparently the reason the State decided to proceed with these eight executions is that the ‘use by’ date of the State’s execution drug is about to expire.”
It’s hard to imagine a more clear-cut argument for the arbitrary and capricious nature of the decision. By definition, that alone should violate the prisoners’ due process rights to a fair trial. Instead, possibly innocent men will be put to death.
Given the glacial pace of jurisprudential evolution, Breyer’s echo of Kennedy in his dissent is important. Breyer has been the death penalty’s most vocal critic on the Court, yet the practice remains constitutional for now. Had Republicans done their jobs and confirmed Judge Merrick Garland rather than block the seat for Gorsuch, Garland would have likely joined his liberal colleagues and granted the requests to stay the executions while the prisoners’ ongoing challenges to the State of Arkansas’ attempts to kill them continued.
Now, we seem to be reversing course. By echoing Kennedy’s comments two years ago, Breyer appeared to be reminding the Court that Thursday’s decision represented a major step backward from its slow movement to end capital punishment.
This decision should end forever the media insistence that Gorsuch is a nice guy and a centrist to be trusted making some of the most important decisions this country faces. It likely won’t, though. And there will certainly be little, if any, interrogation of Gorsuch’s statements in his 2006 book that the intentional taking of human life is always wrong, or any comparison of that history with his vote to send a possibly innocent man to die.
The conservative majority offered no explanation for their decision to allow the executions to proceed, and they likely don’t think the public deserves one. By contrast, Breyer laid bare in one paragraph the heinously cruel power the Court was granting executioners in Arkansas. Thanks to Gorsuch’s vote, states now have a clear signal that even their most transparently cruel and inhumane execution efforts will be met by the Court with silent approval.
These are the real-life consequences of the Republican strategy to take over the federal courts. They are deadly. And they are just beginning.