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September 22, 2010

Justice Elena Kagan's first significant vote is against a stay of Teresa Lewis's execution

As detailed in major stories from the AP and CNN and other major media sources, late yesterday the US Supreme Court refused to stay the scheduled execution of Teresa Lewis, the condemned woman sent to death row for her role in planning the killings of her husband and stepson in 2002. Lewis is now likely to be the first woman executed in the United States in five years, which is one of the reasons her story and likely execution is garnering lots of attention.

Missing in the coverage I have seen, however, is an interesting gender and new Justice angle on the Supreme Court's work late last night as evidenced by text of the SCOTUS order:

The application for stay of execution of sentence of death presented to The Chief Justice and by him referred to the Court is denied.  The petition for a writ of certiorari is denied.  Justice Ginsburg and Justice Sotomayor would grant the application for stay of execution.

I think it quite interesting and noteworthy that the two Justices who voted to stay Teresa Lewis's execution were both women AND that the newest female Justice, Elena Kagan, broke ranks with her more senior judicial colleagues by deciding against a stay for Teresa Lewis.

Though perhaps too much should not be read into this matter, I think there is a lot of "catnip" for SCOTUS watchers and also for would-be fans/foes of Justice Kagan.  Those concerned (or hoping) that Justice Kagan will be a predictable vote for liberal positions should be pleased (or troubled) that she was not willing to vote for a stay here.  But those hoping (or concerned) that Justice Kagan will be a shrewd junior justice who will build bridges/allies among more conservative Justices should be pleased (or troubled) that Justice Kagan seized an early opportunity to show that she will not always vote for death penalty stays.

A few recent related posts:

September 22, 2010 at 04:20 PM | Permalink


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Interesting. But, last week Justice Sotomayor voted alone to grant Holly Wood a stay of execution, yet she wrote the opinion several months ago affirming his death sentence. Figure it out. Good luck

Posted by: DaveP | Sep 22, 2010 4:37:56 PM

IMO, there would be more to read into it if the vote were 5-4. In that situation, Kagan's vote would have mattered. (I believe she votes last as the most junior member?) In this 7-2 situation, she may have just decided that she didn't want to cast such a controversial first vote and yet have it not mean anything beyond symbolism. A form of "judicial capital" among her colleagues, so to speak. Of course, I'm just guessing. But given that her whole life she’s been attempting to withhold her personal views (let alone espouse controversial ones), this may have just been a strategic decision for her first vote.

Posted by: DEJ | Sep 22, 2010 6:37:07 PM

Justices Stevens, Ginsburg, and Sotomayor have fairly consistently voted in favor of a stay of execution in Virginia cases that involve review of a first habeas petition. This is because Virginia, uniquely among the states, sets an expedited execution date in every case immediately after the federal court of appeals denies habeas relief on a first petition. As these Justices explained in Emmett v. Kelly, 552 U.S. 942 (2007) (statement respecting the denial of certiorari), and again in Muhammad v. Kelly, 130 S.Ct. 541 (2009) (statement respecting the denial of certiorari), Virginia's practice unfairly shortens the applicant's time to prepare a petition for certiorari, truncates the Court's deliberative process on a matter that requires its careful attention, and ignores the careful distinction Congress has drawn between first petitions and successive petitions. It is almost certainly Virginia's practice, rather than the gender of the Justices or their views about the death penalty, that prompted Justices Ginsburg and Sotomayor to vote for a stay in Teresa Lewis' case.

Posted by: Michele Brace | Sep 22, 2010 6:43:12 PM

Kagan probably didn't see any issue that was cert worthy to stay the execution. Ginsburg always votes to block VA executions because the state sets the execution date after the 4th circuit's mandate instead of waiting for the cert petition to be denied.

Posted by: DaveP | Sep 22, 2010 6:44:40 PM

great post. I guess we were typing at the same time.

Posted by: DaveP | Sep 22, 2010 6:52:21 PM

OMG... Stay against the Teresa Lewis should be conceive fast

Posted by: Penegra | Sep 23, 2010 1:15:40 AM

"...she may have just decided that she didn't want to cast such a controversial first vote and yet have it not mean anything beyond symbolism."

It's about what I would have expected from one of Obama's don't-rock-the-boat nominees.

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