Alito Busts a Moderate Move

In his first decision as the Supreme Court's newest associate justice, Samuel Alito split with the court's most conservative members, voting to uphold a stay of execution for a condemned Missouri inmate

In his first decision as the Supreme Court's newest associate justice, Samuel Alito on Feb. 1 split with the court's most conservative members, voting to uphold a stay of execution for condemned Missouri inmate Michael Taylor. Alito, who was confirmed by the Senate (in a 58-42 vote) and sworn in the day before, sided with five of the court's justices in halting Taylor's execution in order to allow an appeals court to consider his claim that execution by lethal injection violates the constitutional ban on cruel and unusual punishment. (Chief Justice John G. Roberts and Justices Antonin Scalia and Clarence Thomas voted to lift the stay.)

Taylor's last-minute reprieve marked the second time in a week that the justices granted a stay based on a challenge to the lethal-injection method. On Jan. 25, the court granted a stay of execution for Florida inmate Clarence Hill, who argues that execution by lethal injection violates his civil rights. Hill's claim is unique in that he has raised the argument as a civil rights claim, outside of the scope of routine death-penalty appellate-review laws. As such, the high court agreed to hear Hill's case in order to consider whether the appeals court erred in ruling that Hill was legally barred from bringing the claim – their ruling in the case is expected to clarify the process by which an inmate may bring a last-minute appeal challenging the manner of execution, though, in Hill's case at least, it is unlikely that the court will rule directly on the constitutionality of lethal injection. (The court in 2004 ruled that Alabama death row inmate David Larry Nelson could pursue a similar last-minute appeal, in which Nelson argued that his collapsed veins made lethal injection a cruel and unusual form of punishment. Nelson lost the case and the Supremes subsequently declined to halt his execution.)

Although the court appears poised to take on a direct challenge to the constitutionality of the three-drug lethal-injection cocktail, they last week also declined to intervene in two such cases, including that of Texas death row inmate Jaime Elizalde Jr., who was executed Jan. 31. The Supremes are slated to hear oral arguments in the Hill case on April 26; a ruling is expected this summer.

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