Gorsuch faced early test in court’s life-and-death power

Just 11 days on the job, U.S. Supreme Court Justice Neil Gorsuch had an early taste of the weighty power that sometimes comes to a member of the nation's highest court.

Gorsuch for the first time faced a vote in which he could have spared a man's life.

While his four more liberal colleagues voted to block the execution of convicted murderer Ledell Lee in Arkansas, Gorsuch joined with his four conservative colleagues to let the state's lethal injection process go forward. Lee became the first person executed in Arkansas in nearly 12 years and that state is planning to put another three men to death before its supply of the key execution drug midazolam expires at the end of the month.

It's rare that a new justice is put to such a life-or-death test so early and some justices have called such decisions the hardest part of the job. On Justice Samuel Alito's first day on the court, a majority of his colleagues refused to lift a stay of execution, keeping him from having to face a choice similar to Gorsuch's Thursday.

"The stories are heart-wrenching. They wouldn't be on death row if they hadn't committed horrible, horrible crimes," said Carrie Severino, a former law clerk to Justice Clarence Thomas and the leader of a group that poured millions of dollars into TV ads backing Gorsuch's confirmation.

"It's a situation where your job isn't done until someone has died. That said, their role in the legal process is not to exercise some sort of moral judgment but to ask if the law has been complied with," Severino said.

Among Gorsuch's critics were those who said his record of dealing with inmate appeals during his time on the federal appeals court in Denver dulled their hopes Gorsuch might side with Lee.

"The vote was extremely concerning, but to be honest, not surprising," said Daniel Goldberg, legal director of the liberal Alliance for Justice, which opposed Gorsuch's confirmation.

Gorsuch comes to the court with his own record and judicial philosophy. But like all new justices, he is walking into arguments that have been raging for years. Capital punishments have produced especially heated disagreements at arguments and in written opinions.

In separate dissents Thursday night, Justices Stephen Breyer and Sonia Sotomayor continued criticism of the way the death penalty is administered that they first leveled nearly two years ago in a case involving the use of midazolam in Oklahoma.

Breyer talked about the seeming randomness of the death penalty, pointing to the looming expiration of the state's supply of midazolam as the primary factor motivating Arkansas to seek to execute Lee and seven other men over the course of two weeks. Breyer has described the arbitrary nature of capital punishment as one reason he has concluded after more than 20 years on the court that the death penalty probably is unconstitutional.

In 2015, Sotomayor said questions about the effectiveness of midazolam in rendering inmates unconscious potentially exposes them "to what may well be the chemical equivalent of being burned at the stake" by the other drugs in the lethal injection procedure. She also objected to the requirement spelled out by the court in the case of Glossip v. Gross that inmates have to provide a potentially less painful way to accomplish their own execution. "I continue to harbor significant doubts about the wisdom of imposing the perverse requirement that inmates offer alternative methods for their own executions," she said Thursday.

Gorsuch and the other justices who would not provide a fifth vote to stop Lee's execution didn't write anything Thursday — standard practice for the prevailing side in emergency appeals.

But he inevitably will weigh in on the death penalty and related issues in the years to come, and quite possibly, in ways that might surprise today's critics and supporters.

Justice David Souter's early votes on abortion are a good example.

When Souter joined the Supreme Court in 1990, abortion opponents thought they might have enough votes to overturn the landmark abortion rights ruling of Roe v. Wade, which was decided in 1973 by a 7-2 vote.

The two dissenting votes remained on the court and they had been joined by President Ronald Reagan appointees Antonin Scalia and Anthony Kennedy. Souter was the latest Republican appointee to join the court, having been named by President George H.W. Bush.

Near the end of his first term as a justice, Souter joined four colleagues in a decision that upheld a so-called gag rule that prevented family planning clinics that received federal money from discussing abortion with pregnant women.

By the following spring, with yet another Republican appointee on the court in Justice Clarence Thomas, another high-court abortion case took direct aim at Roe.

But when the court announced its decision in late June, Souter and Kennedy were part of the majority that reaffirmed a woman's right to an abortion.

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