Five conservative justices are bent on defending a policy that is unpopular, expensive, and cruel.
The post–Anthony Kennedy Supreme Court majority has introduced itself to the nation by strapping itself to the decaying corpse of the American death penalty.
It is a curious choice. Capital punishment is a relic of a harsher time, now stumbling toward extinction, unpopular with both right and left. For these conservative justices—Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—to embrace it is like an American politician journeying to the Soviet Union in 1991 and saying, “I have seen the future and it works!”
In February, the Court rejected a plea from an Alabama inmate to have his spiritual adviser in the death chamber with him as he died. The inmate was Muslim, and Alabama law allows only the prison’s full-time chaplain, a Christian, to fill that role. Remarkably, the Court had no need to become involved. The U.S. Court of Appeals for the Eleventh Circuit had already granted the inmate, Domineque Ray, a stay of execution until a court could hear his religious-freedom claim. The Eleventh Circuit encompasses Alabama, Florida, and Georgia—the heart of the death belt. Its judges hear in one year more death cases than Roberts, Thomas, or Kavanaugh heard in their whole careers on the circuit bench. (The Tenth Circuit, where Neil Gorsuch was previously seated, includes Oklahoma, which conducted 33 executions during his tenure; only one other state in the circuit, Utah, conducted an execution during that time.)