WASHINGTON -- The Supreme Court's order Wednesday night denying Troy Anthony Davis' stay of execution states, in its entirety, "The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied." This statement came four hours after the Court first received Davis' appeal and three hours after he had been scheduled to die. The delay led some observers to wonder whether the justices were waiting for a colleague to finish a fiery dissent.
But there was no dissent. At 11:08 p.m., Davis, convicted for the 1989 murder of Officer Mark MacPhail, died by lethal injection.
Long gone are the days when Justices Thurgood Marshall and William Brennan Jr. would consistently dissent from stay denials, citing their belief that the death penalty was in all instances cruel and unusual punishment in violation of the Eighth Amendment.
Jordan Steiker, a law professor and director of the Capital Punishment Center at the University of Texas School of Law, remembers receiving stay applications during his night shifts at the Court when he clerked for Marshall in the 1989-90 term. The elderly justice "insisted that, no matter what the hour, we should contact him at home, where his wife would wake him up, we'd describe the petition, and he'd say, 'You know my vote,' and hang up."
No justice today takes Marshall's categorical view, and even those who raise concerns about the death penalty know they don't have the votes on the current Court to bring executions to a halt. Speaking in San Francisco last week, Justice Ruth Bader Ginsburg said she'd like to return to the years 1972 to 1976 "when the Supreme Court said the death penalty could not be administered with an even hand, but that's not likely to be an opportunity for me."
But the inability to stop all executions has never been an impediment to the current more-liberal justices recording their disagreement in a capital order. That fact suggests to Robert C. Owen, visiting clinical professor at Northwestern University School of Law, that "the justices of the Court who might have been sympathetic to Davis' claim of innocence did not feel they had legal authority to review the case."
Indeed, by the time the stay application arrived at the Court on Wednesday evening, there was "very little meaningful review available," said Steiker. The Supreme Court can only review cases that present issues arising under federal law. In 2009, Davis came to the Court with the claim that he had evidence to prove his "actual innocence," which would have made his execution a violation of his right to life and liberty under the U.S. Constitution. In response, the Court ordered a federal district court to weigh Davis' evidence of innocence, prompting Justice Antonin Scalia to write in dissent that "[t]his Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent." Ultimately, however, Davis could not convince the district court that he was actually innocent, and both the federal appeals court and the Supreme Court denied further review.
Legal observers say that marked the end of the line for Davis in the U.S. Supreme Court. It did not, of course, stop Davis' lawyers from arguing in their stay application that there were "constitutional errors which have occurred in connection with the lower courts' denial of his claims" of actual innocence. But, as the Georgia Attorney General's Office argued in response, the U.S. Supreme Court's decisions in earlier cases prevented the justices from reviewing Davis' federal claims because the Georgia Supreme Court an hour earlier had denied his claims on "independent and adequate state law grounds."
Davis' request was the third stay application that the justices had considered in the past seven days. On Sept. 15, Duane Buck, a Texas death row inmate, learned that the Court had granted his stay just prior to his scheduled arrival in the death chamber. The same situation repeated itself on Sept. 20 for Cleve Foster, also a death row prisoner in Texas.
Last-minute stay applications from death row inmates are a regular feature of the Supreme Court's work. So regular, in fact, that the Court has a staff member whose sole job is to coordinate and ensure that the justices make timely and comprehensive determinations in these life-or-death matters.
Why this pattern did not hold for Davis, then, has been a source of much speculation. Steiker, for instance, chalked the delay up to the justices exercising "an abundance of caution" and speculated that the justices could have been waiting for Davis to file the formal, more detailed appeal that his lawyers had said was forthcoming in the stay application. Owen suggested the justices may have needed time to examine the records presented earlier in the day to the Georgia state courts.
Whatever caused the delay, the real issue, as Slate senior editor Dahlia Lithwick and Drexel University law professor Lisa McElroy argued in today's New York Times, was the Court's "absolute radio silence" for 203 minutes. With no one on the high bench today willing to take a categorical stand against capital punishment, and with no procedural room left for the liberal justices to maneuver, the only mystery remaining from Wednesday night is why Davis, the MacPhail family and their supporters had to wait so long for that one foreordained sentence.