“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.

 

Trump Justices Neil Gorsuch and Brett Kavanaugh cast deciding votes in a 5-4 “shadow docket” ruling, from which even Justice Amy Coney Barrett dissented, which effectively ordered the immediate execution of a Black man whose execution had been stayed because two lower federal courts agreed that the state had violated the Americans with Disabilities Act (ADA) by failing to give him a meaningful choice as to the method of execution. The January 2022 order was in Hamm v Reeves.

 Responding in part to concerns that its usual method of execution through lethal injection can cause significant pain and suffering, Alabama enacted a law in 2018 that allows prisoners to choose execution by nitrogen hypoxia inhalation instead. But the law requires prisoners to fill out “election forms” to make that choice and return them in 30 days, and undisputed evidence shows that the forms are written in “legalese” and require “at least an 11^th-grade reading level to understand” them,” as Justice Kagan wrote in dissent.  Matthew Reeves, a Black man who was sentenced to death in Alabama, did not fill out such a form and was thus scheduled to be executed by lethal injection.

Lawyers for Reeves filed a suit contending that because of cognitive limitations, he has the reading ability of only an “elementary school child,” and that the state’s failure to offer him a reasonable accommodation by simply explaining the forms so that he could choose nitrogen hypoxia, which he believes will be less painful, violated the ADA. An Alabama federal district court and the conservative 11^th Circuit agreed, and thus prohibited the state from executing him except by nitrogen hypoxia. Alabama went to the Supreme Court to try to reverse the injunction and execute him as scheduled by lethal injection.

In a one-sentence shadow docket 5-4 order with no explanation, the Court vacated the injunction on January 27, and Alabama executed Reeves by lethal injection that night. Justice Elena Kagan wrote a strong dissent, joined by Justices Stephen Breyer and Sonia Sotomayor. She explained that the majority’s order violates prior precedent by completely “disregard[ing]” the “well-supported findings” by all four judges who previously considered the case, including “a written record of more than 2,000 pages,” more than “seven hours of testimony and oral argument,” and a “37-page decision” by the district court. The district court had concluded that the state’s violation of the ADA was “open and obvious,” that Reeves would suffer “irreparable harm” through execution by the painful lethal injection method that “he so greatly fears,” and that Alabama could go ahead and execute him by nitrogen hypoxia in just “a matter of weeks.” But the majority nevertheless vacated the injunction so that the state could immediately execute Reeves by the more painful method of lethal injection, in violation of the ADA. Justice Amy Coney Barrett dissented as well, without joining Kagan’s opinion or writing one herself.

The case is yet another example of an “unsettlingly cruel” ruling by this Supreme Court majority to rush executions despite clear violations of the law and morality. The decision by Trump Justice Barrett to dissent in this case, however, may offer some small amount of hope. It is important to continue to promote the nomination and confirmation of fair-minded judges who will respect the law in this and other areas, as part of our fight for our courts.