Does splintered nature of DC Circuit panel ruling suggest federal executions are now unlikely until at least 2022?

As reported in this post yesterday, a divided DC Circuit panel lifted an injunction on federal executions via this 88-page opinion in In Re: Federal Bureau Of Prisons’ Execution Protocol Cases, No. 19-5322 (DC Cir. April 7, 2020).  Over at Crime & Consequences, Kent Scheidegger here provides an effective summary of the three opinions from the three judges on the panel while noting that the "division on the panel clearly requires further review, and the court on its own motion stayed the issuance of its mandate to allow it."  In other words, the defendants subject to possible execution now have time and every good reason to ask the full DC Circuit and also SCOTUS to address just how federal executions must be conducted under existing statutory authority.

I cannot imagine any reason why defendants would not first seek en banc DC Circuit review.  I am not an expert in en banc procedures, but I do know just the process of just seeking such review and having it rejected can itself often take at least a few months.   In this case, given the issue and the split among the panel judges, I would guess the odds of a grant of en banc review are much higher than usual.  If such review is granted, I would be surprised to see a full opinion from the full DC Circuit until sometime in (early?) 2021.

Whatever the DC Circuit does and whenever it does it, an appeal to the US Supreme Court is a near certainty.  If the full DC Circuit takes up this case and provides a clear script for federal executions to go forward, I suppose it is possible that SCOTUS would not grant review.  But I think it quite likely, no matter what the DC Circuit does, that this matter will be considered on the merits by SCOTUS.  And, roughly speaking, it can often take up to 18 months or 2 years between a lower court's ruling and a disposition on the merits by the Supreme Court.  (The Fourth Amendment case of Kansas v. Glover decided by SCOTUS this week, for example, had been decided by the Kansas Supreme Court 21 months ago in July 2018.)

Of course, the Justice Department could urge for this matter to be litigated more quickly, and maybe could even ask immediately for SCOTUS review by claiming it could not operate an execution protocol effectively on the terms set out in the DC Circuit panel decision.  But, of course, the Justice Department has a lot on its plate these days; it hardly clear, practically or politically, that DOJ will want to press forward with any suggestion that this case involves priority matters at this time.  

Future litigation realities aside, there are other political/legal possibilities that might change this federal capital landscape and timeline.  Congress could alter the text of the statute that is the focal point of this legal battle.  But that seems unlikely when Congress is itself busy with more pressing matters, and a legislative change would itself likely engender just another type of litigation.  Perhaps more likely, as we are now less than seven months to a scheduled election, is a change in administration.  For the first time since 1988, it appears that the Democratic nominee for president will campaign as an opponent of capital punishment.  If a Democrat is in charge come 2021, it is possible (though not a certainty) that the Justice Department will not continue to seek conduct federal executions).

Long story short: though the death-row defendants lost a battle yesterday, the always lengthy capital litigation war is still a long way from final resolution.

Prior related posts:

• "Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse"
• Previewing the (swift? endless?) litigation sure to ensue in wake of effort to restart the federal machinery of death
• Rounding up capital commentary in response to AG Barr's effort to restart the federal machinery of death 
• Federal judge halts pending scheduled federal executions based on contention that planned execution protocol "exceeds statutory authority" 
• How quickly could litigation over federal execution procedures get to SCOTUS?
• DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions 
• SCOTUS denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions
• Dispute over legality of new federal execution protocol up for argument in DC Circuit 
• So much for a speedy resolution in the DC Circuit of the injunction currently precluding federal executions
• Split DC Circuit panel (after taking twice as long as Justice Alito urged) vacates preliminary injunction blocking resumption of federal executions