“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett cast deciding votes in a 6-3 ruling that reversed a lower court decision and authorized the execution of yet another prisoner as ordered by former Attorney General Barr in the last days of the Trump Administration despite strong dissents by the Court’s moderate justices. The January 2021 decision is in United States v Higgs.
As part of its rush to execute as many federal prisoners as possible before President Trump leaves office, the Trump-Barr Justice Department scheduled the execution of Dustin Higgs in mid-January 2021. Although confined at a federal prison in Indiana, he was sentenced to death in Maryland, which has since abolished the death penalty. Federal law requires that a different state must be designated as an alternate state in order to carry out an execution and DOJ moved to substitute Indiana in August. A Maryland judge ruled he did not have the authority to make the change, so the government appealed to the Fourth Circuit, which granted a stay of execution and scheduled argument for January 27, 2021. Fearing that the new Biden Administration would revoke the warrant to carry out the death penalty by then, the Trump DOJ went directly to the Supreme Court.
Despite the very unusual circumstance, a 6-3 majority went along with the Trump DOJ. In what one commentator has called an unprecedented move, it granted review before the Fourth Circuit issued a decision, ordered without explanation that Indiana be substituted so that the execution could take place, and vacated the stay. As a result, the execution took place as the Trump DOJ had scheduled it in mid-January.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented, with strong dissents written by Sotomayor and Breyer. Sotomayor explained that it was an “open and novel” question whether a court could substitute another state in order to carry out the death penalty under the circumstances of Higgs’ case, and that the government had fallen “far short” of the “strict standard” ordinarily required to warrant review before the court of appeals had ruled in the case, but the majority agreed anyway.’
This was all too typical of the Court’s practice over the last six months, Sotomayor went on, when the Court majority has “sidestepped its usual deliberative processes” in order to allow the Trump-Barr DOJ to “push forward with an unprecedented, breakneck timetable of executions.” She and Breyer both reviewed the extremely troubling circumstances under which the 6-3 majority had approved what is now a total of 13 executions in 6 months which, Sotomayor pointed out, was “more than three times as many people” as the federal government had executed “in the previous six decades.” Even when serious legal problems were raised with these executions, Sotomayor went on, the Trump-Barr DOJ “consistently refused to postpone executions” and requested “emergency relief,” which the Court majority granted, to carry out executions “before courts had meaningful opportunities to determine if the executions were legal.” And the majority routinely granted these requests, she went on, with no opportunity for full briefing and argument and generally “without any public explanation for their rationale.”
Justice Sotomayor and the other moderates were understandably critical of the majority. “This is not justice,” Sotomayor proclaimed. Indeed, there can be “no ‘justice on the fly’ in matters of life and death,” she pointed out. As a result of the deciding votes of Trump justices Gorsuch, Barrett, and Kavanaugh, however, that is unfortunately what happened to the 13 people executed by the Trump DOJ over the last six months, including the execution of Dustin Higgs less than a week before the inauguration of a president who has vowed to discontinue the federal death penalty. Although President Biden will be able to stop further injustices in this area, he cannot remedy the terrible injustice done by the three Trump justices and the other members of the Court majority.