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Sotomayor Joins Stevens, Breyer, and Ginsburg in Unsuccessful Effort to Stay Execution:
SCOTUSblog has the scoop. David Savage offers some context.

  UPDATE: I personally don't see very much in this: Recall that one of Justice Alito's very first votes was a vote against lifting a stay of an execution when the other conservative Justices voted to lift the stay. It makes sense that a new Justice with little experience in capital cases would be extra cautious, so it's hard to read much into this, I think.
David T.:
As explained by this post, the reason there wasn't a "courtesy fifth" vote must have been because the four votes were only for a stay and not for cert:
8.18.2009 7:06pm
David T.:
Here's the post I tried to link in my earlier comment: www.scotusblog.com/wp/more-thoughts-on-death-penalty-stays/
8.18.2009 7:07pm
ruuffles (mail) (www):

Recall that one of Justice Alito's very first votes was a vote against lifting a stay of an execution when the other conservative Justices voted to lift the stay.

Hmm. Given that vote, do you think it's more likely that Alito, rather than Roberts (or both), voted with the liberals in the Davis case?

Another question: is there a reason, while both decisions came out on the same day, Sotomayor participated in only one? IIRC, this stay request came very recently, after a clemency by the Gov was denied, while the Davis case has been sitting there for a while. Her vote wouldn't have made a difference in either case.
8.18.2009 7:09pm
Cato The Elder (mail) (www):
Whee!
8.18.2009 7:19pm
Kelvin:
the first case was already decided. the second was presented when she was sitting.
8.18.2009 7:22pm
Jay:
I feel like I'm missing something obvious, but I don't get why the 4 voted for a stay if they were also voting against hearing it on the merits at the same time. I could understand voting for the stay alone, on the grounds that you want to delay granting cert for full briefing. Or, obviously, if you've already decided cert should be granted. But what does it mean to vote for a stay but against cert? You're staying the executing pending what, exactly?
8.18.2009 7:39pm
CrazyTrain (mail):
I had the exact same thoughts as Jay. Any reaction, Orin?*

*I note that the four dissenting Justices could have voted to grant cert in which case a fifth "courtesy" vote for a stay would be automatic by custom.
8.18.2009 7:43pm
David T.:
They voted for a stay and if there had been a fifth vote they would have had more time to consider the petition.
8.18.2009 7:47pm
OrinKerr:
Jay writes:
I feel like I'm missing something obvious, but I don't get why the 4 voted for a stay if they were also voting against hearing it on the merits at the same time. I could understand voting for the stay alone, on the grounds that you want to delay granting cert for full briefing. Or, obviously, if you've already decided cert should be granted. But what does it mean to vote for a stay but against cert? You're staying the executing pending what, exactly?
I assume they wanted to grant the stay but not decide the cert petition yet, on the theory that if they had more time they might be able to come up with some plausibly cert worthy issue that they could grant on down the road. But they couldn't come up with anything cert-worthy in the limited time they had, and the other five Justices weren't willing to hold the case for months while the RBG clerks rifled through the record in the hopes of finding some diamond in the rough that the defendant's lawyers had overlooked. So the Court voted, and the four didn't yet have an issue on which they could grant and at least one of them voted to deny cert, That's my best guess, at least.
8.18.2009 8:24pm
Jay:
Thanks, Orin. I guess that just seems shockingly...principled. I generally think people are a little too cynical about how the judiciary operates, and the great majority of judges just want to get things right. But it's still a little amazing to me that four justices thought this capital case was important enough to stay, and, under established Court procedure, they could've had cert granted if they'd voted for it, yet they still chose not to because they didn't have a specific cert-worthy ground identified yet. After all, such a case could always be DIG'd (or an easy affirmance) if the diamond in the rough didn't materialize, right?

Of course, I guess the ultra-cynical view is that the four liberals had no interest in actually taking the case, seeing it as a sure loser, but the 5-4 stay denial makes the conservatives look bad/unwilling to hear things out...
8.18.2009 8:39pm
OrinKerr:
Jay,

I don't think it looks so principled if you're the defendant. From his perspective, the four Justices just let you fry because they couldn't come up with a QP that wouldn't make them look bad.
8.18.2009 8:48pm
Angus:
Strange case, and I can see why it interested the justices. The killer was convicted of murder-for-hire and sentenced to death. But the guy who arranged the shooting was acquitted of hiring him (though sent to prison for 20 to life on related charges). Very odd set of results.
8.18.2009 9:14pm
Jacob Berlove:
One area of Sotomayor's potential jurisprudence that hasn't been discussed much at all is Congress's power under the COmmerce Clause. Her answers even to the Democratic questioners at her confirmation hearings sounded surprisingly satisfied with Lopez and Morrison and the tests announced in those cases, so this area may well be one where her jurisprudence doesn't march in tune with that of the other three liberals on the court.
8.18.2009 9:16pm
Jay:
Orin,
Are you implying there's some higher source of principle than the Sup. Ct. Rules? ; )
8.18.2009 10:31pm
DrStrange:
Orin wrote: and the other five Justices weren't willing to hold the case for months while the RBG clerks rifled through the record in the hopes of finding some diamond in the rough that the defendant's lawyers had overlooked.

Do I detect just a touch of sarcasm about the way Justice Ginsburg approaches these cases?

Not that that's a bad thing.
8.18.2009 10:41pm
supra shoes (mail) (www):
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8.19.2009 2:40am
KeithK (mail):
Voting for a stay of execution when you don't have enough of a reason to review the case on appeal doesn't sound like acting on principle. It sounds to me like acting on policy preferences (against the death penalty). If the defendant has been convicted and sentenced to death by a jury, the executive has chosen not to commute and there are no issues of law worthy of appelate review the principled action for a judge would be to let the sentence be carried out according to the law.
8.19.2009 3:05pm

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