Justice Gorsuch casts death-penalty vote on Supreme Court case

Supreme Court Justice Neil M. Gorsuch cast his first consequential vote Thursday night, siding with the court’s other four conservatives in denying a stay request from Arkansas death-row inmates facing execution.

Hours later, the state executed one of the men, the first lethal injection carried out there since 2005.

New justices have described being the final word on whether a death-row inmate is executed — often during a late-night, last-chance appeal to the Supreme Court — as a time when the responsibility of the role crystallizes. Indeed, one of the court’s most solid death-penalty supporters, Justice Samuel A. Alito Jr., was tasked on his first full day as a justice in 2006 with deciding whether to dissolve a stay that kept Missouri from going forward with an execution. The stay was upheld, and Alito was not listed among the dissenters.

Gorsuch’s reasoning for his vote is not known. Neither he nor the other justices who turned down the request explained the decision. But Gorsuch was sworn in on April 10, and he has had some time to study Arkansas’ well-publicized attempt to execute several inmates before a drug used in their planned lethal injections expires.

The court’s four liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — said they would have stayed the executions.

Breyer wrote that the case supports his call, which Ginsburg has joined, for a review of whether the death penalty can be constitutionally applied.

“Why these eight? Why now? The apparent reason has nothing to do with the heinousness of their crimes or with the presence (or absence) of mitigating behavior,” Breyer wrote. Instead, Breyer wrote, “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. In my view, that factor, when considered as a determining factor separating those who live from those who die, is close to random.”

As expected, Gorsuch’s decisions have been closely scrutinized. A new justice’s role on the court is only broadly sketched during confirmation hearings, and each decision begins to fill in the outlines of a lifetime appointment.