Supreme Court Fast-Tracks Federal Execution Petition

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In the on-going litigation over the federal execution protocol, the U.S. Supreme Court today granted the murderers’ motion to fast-track the briefing on whether the high court should take the case up. The government did not oppose the motion.

The government’s response is due tomorrow, as are any amicus curiae briefs. The murderers’ reply is due Monday. That would allow the Court to consider the case at its conference next Thursday.

All four petitioners murdered children. Their executions are set for July 13, July 15, July 17, and August 28. See the DOJ press release.

If the Court does take up these cases, will it stay the executions and will it hear them on an expedited basis? The murderers’ arguments are quite weak, and it would be unfortunate to allow them to further postpone their well-deserved executions with further litigation. On the other hand, the issue of the validity of the federal execution protocol is important, and given the badly splintered outcome in the Court of Appeals, see this post, it needs to be resolved by the Supreme Court.

The Court has expedited an execution case arising late in the term before.

On April 24, 1996, President Clinton signed the landmark Antiterrorism and Effective Death Penalty Act. That law included a strong crackdown on successive habeas corpus petitions. On May 2, Ellis Felker asked the Eleventh Circuit for leave to file a second federal habeas corpus petition. That court turned him down the same day.

The next day, May 3, 1996, the Supreme Court granted his request to take the case up (his petition for a writ of certiorari, in legalese). See 517 U.S. 1182. The Court heard argument June 3 and issued its decision upholding the new law on June 28. See 518 U.S. 651.

The issue in these cases could be decided that swiftly. As discussed in the earlier post, Judge Katsas’s analysis is correct, and the Supreme Court could adopt his interpretation in a brief per curiam opinion. It could even be a summary affirmance, decided on the certiorari-stage papers without new briefing or an oral argument.

We will probably not have long to wait to find out how the Court will proceed in this matter. The case is Roane v. Barr, No. 19-1348.