Alito ceremony February 16
on Feb 3, 2006 at 3:19 pm
After asking around, here is my sense of the state of play in the Supreme Court lethal injection cases.
There is a procedural issue: whether a challenge to a legal injection protocol is a successive habeas application. And there is a substantive issue: whether any of the protocols violate the Eighth Amendment.
The Supreme Court stayed the execution, and granted cert., in Hill to resolve a circuit split over the procedural issue. It then granted another stay in Rutherford on the same question.
The Supreme Court has denied stays with respect to the substantive issue. It did so, for example, in Bieghler over the dissents of Justices Stevens and Ginsburg. Yesterday, in the Crawford case discussed in Lyle’s most recent post, the Eighth Circuit granted a stay on the substantive issue — in the district court, the defendant had lost but the court had reached the substantive issue. The Supreme Court refused to vacate the stay, over the dissents of the Chief Justice and Justices Scalia and Thomas.
One particular point of confusion may arise from another piece of the Bieghler case. A divided panel of the Seventh Circuit granted a stay when the substantive question was before them. The Supreme Court vacated that stay over three dissents. What then explains the contrast between the order vacating in Bieghler and the order refusing to vacate in Crawford, when the cases were nominally in the identical procedural posture? It appears that the Seventh Circuit majority in Bieghler entered their stay on the basis of the stay and cert. grant in Hill, which (as noted above) was only on the procedural issue. The order vacating that stay appears to reflect the Supreme Court’s effort to correct that misimpression. By contrast, the Eighth Circuit in Crawford entered a stay directly on the substantive question.
The issue is of particular interest to us because we are counsel in a case that presents the substantive issue, Abdur’Rahman. Our petition for cert. is due in a couple of weeks. Abdur’Rahman is in an interesting posture because there was actually a trial on protocol question, creating a developed record. And it arises through the state courts, and without an execution imminent (so there is no request for a stay), so the procedural issues don’t arise.
The Supreme Court will hold a special sitting on Thursday, Feb. 16, for the formal investiture of the new Justice, Samuel A. Alito, Jr. This is an invitation-only event, not open to the public but open for press coverage. Alito will participate in his first Conference of the Court on Friday, Feb. 17. Of course, he has already begun his duties.
Here is the text of the press release about the investiture, issued Friday by Kathleen L. Arberg, the Court’s public information officer:
A formal investiture ceremony for Associate Justice Samuel A. Alito, Jr., will take place at a special sitting of the Supreme Court in the Courtroom on Thursday, February 16 at 2 p.m. On January 31, Samuel A. Alito, Jr., was sworn in as the 110th Justice in a private ceremony at the Supreme Court so that he could begin to participate in the work of the Court immediately.
Press seating for the Court ceremony will be by reservation. Requests for seating must be received by the Public Information Office no later than 3 p.m., Wednesday, February 15.
Chief Justice John G. Roberts, Jr., Justice Alito, and Justice Alito’s family will be available for photographers at approximately 2:15 p.m., Thursday, February 16, on the front plaza of the Supreme Court building, immediately following the investiture ceremony.
Chief Justice Roberts and Justice Alito will walk down the front steps of the building and stand briefly at the base of the steps on the plaza. They will not be available for questions. Credentials issued by the Public Information Office are required for access to the plaza. Cameras may be positioned on the plaza any time after 1 p.m. in the designated roped-off area. All crews should be in place by 1:45 p.m.
To obtain credentials for the outside photo opportunity, please call the Public Information Office at the Supreme Court, 202-479-3211, by no later than 3 p.m., Wednesday, February 15.
