The Volokh Conspiracy

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SCOTUS Splits 5-4 on Capital Case

Justice Barrett would have denied the stay, but did not join Justice Kagan's dissental.


Thursday evening, the Supreme Court vacated an injunction entered by the district court in Hamm v. Reeves. The Supreme Court's order allowed the execution of Matthew Reeves to proceed. The Court split 5-4. Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, and Kavanaugh were in the majority. Justice Barrett simply indicated that she would have denied the application, without a noted dissent. Justice Kagan wrote a three-page dissent, which was joined by Justices Breyer and Sotomayor.

I think this is the first case where the new Roberts Court split 5-4 on a capital case. How do we explain Barrett's vote? I think she is simply opposed to issuing relief on the shadow docket–especially where the Supreme Court is vacating a lower-court injunction. Barrett made this point very clear in John Does 1-3 v. Mills.

Going forward, capital defendants can hope to pick off one more vote to get a favorable ruling.