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October 4, 2017

SCOTUS vacates by 6-3 vote lower federal court injunction which would have blocked planned Alabama execution

As reported in this local article, the "U.S. Supreme Court today cleared the way for Alabama's planned execution Thursday of inmate Jeffery Lynn Borden for the Christmas Eve 1993 shooting deaths of his estranged wife and her father in Gardendale." Here is more:

The U.S. Supreme Court issued an order granting the request of the Alabama Attorney General's Office to vacate the injunction blocking the execution that had been issued by the U.S. 11th Circuit Court of Appeals last week.  The Attorney General's Office had appealed the 11th Circuit's order to the U.S. Supreme Court on Monday.  In today's order from the U.S. Supreme Court three justices — Ruth Bader Ginsburg, Stephen Breyer, and Sonja Sotomayor — said they would have denied the Attorney General's request and kept the injunction blocking the execution in place.

The execution is scheduled for 6 p.m. Thursday at the Holman Correctional Facility in Atmore.

Over at Crime & Consequences, Kent Scheidegger has this post noting that the issue that led to the injunction concerned efforts by the condemned to contest lethal injection methods based on Alabama use of midazolam in its execution protocol.   Over at SCOTUSblog, Amy Howe has this post with a few additional particulars.

October 4, 2017 at 06:01 PM | Permalink


I continue to find these "we say so/we disagree" statements bothersome especially when the stakes are so high. Scalia and Thomas, e.g., called out the other justices for not saying anything while leaving lower court same sex marriage rulings in place.

And, it works both ways.

If the 11CA was wrong, say why. Not saying anything invites other panels to decide "well, they didn't say THIS was wrong ..." If you are going to interfere with a lower court while letting them be in the vast majority of cases, say why.

The dissenting justices on the record [there is some dispute what this means; Judge Kozinski in a panel recently noted that if you don't dissent on the record, you are agreeing with the order / others on the panel noted this is far from clear] are saying they think it is wrong to execute someone at this point. Pretty serious. Say why.

We can reasonably guess the majority and dissenting views, including given Sotomayor specifically has written dissents on this specific general matter. But, that shouldn't be necessary. Say why, even if a few sentences or even a "see my dissent" cite.

Posted by: Joe | Oct 4, 2017 9:23:47 PM

Your friend Kent is an asshole.

Posted by: anon | Oct 5, 2017 11:36:42 AM

Comment at one of the links: "Justice Kagan said in her confirmation hearing that the death penalty was settled law going forward. This is one indication, albeit indirect, that she is true to her word, as she was when she was Dean at Harvard."

Assuming that Kagan actually concurred with the order [silence to me implies consent but again not necessarily in this case], this doesn't say much. Breyer, RBG & Sotomayor repeatedly quietly went along with the Supreme Court rejecting late orders in death penalty cases. Unlike Brennan & Marshall [maybe Blackmun at the very end; not sure if he did it for each case], they don't each and every time dissent from the execution.

Kagan can clearly realize that there aren't five votes to uphold the lower court here and thus stay silent. Roberts and Alito not dissenting on the record when the Supreme Court left lower court same sex marriage rulings in place didn't mean they agreed the opinions below. Likewise, the death penalty can be constitutional and this specific usage not.

Posted by: Joe | Oct 5, 2017 11:53:49 AM

This got delayed again in US District Court because the judge was following the order from the 11th Circuit's recent opinion granting a stay and remanding for more proceedings. Alabama didn't have time to get it vacated.
I am surprised at Judge Tjoflat in this case. He is the longest serving federal judge in the country and the vast majority of the time is with the state.
He knows better than this. I expect it from the other 2 on the panel.

Posted by: DaveP | Oct 6, 2017 8:32:14 AM

Maybe the fact someone usually for the state votes against it should make one go "huh."

Posted by: Joe | Oct 6, 2017 10:32:31 AM

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