Justices take another long break without resolving Baze

Lawyers and judges in state and lower federal courts in regions with active capital punishment systems are accustomed to speedy appellate litigation in which complicated death penalty issues must be resolved sometimes in a matter of days or hours because of a looming execution date.  I suspect some of these lawyers and judges will join me in being disappointed and concerned with how long the Supreme Court is taking with the Baze lethal injection case.

We are now approaching six months since the Justices took up the Baze case in September, and it has been nearly two full months since the Court heard oral arguments in Baze.  In my view, neither the legal or factual issues in Baze are that complicated.  Moreover, the Justices have had the benefit of two recent ruling in this area (Hill and Nelson), and also the benefit of lots of lower court and amici input.

If Chief Justice Roberts was genuinely committed to having the Justices act more like a court and less like law professors, he would have made sure Baze was resolved quickly.  Expedited action in this setting seems especially important if, as some suggest (here and here), that the SCOTUS moratorium on executions may be costing hundred or even thousands of innocent American lives because of diminished deterrence.

Joyfully, I do not think recent homicide data supports a claim that the SCOTUS moratorium on executions is costing lives.  Nevertheless, I do think it is troublesome that the Justices have kept the modern death penalty in suspended animation as the Justices take their sweet time deciding an issue critically important to the future status of the American system of capital punishment.  Perhaps Congress could and should pass a law preventing the Justices from going on any kind of book tour when important death penalty cases are pending.

This kvetchy post is primarily the result of the fact that, according to this post at SCOTUSblog, the Justices this morning resolved two complicated cases that were both argued after Baze.  In addition, it appears that the Court now goes on hiatus for a few weeks, so that March 18 may be the next chance for an opinion in Baze (and I am not holding my breath we will see a ruling then).  Maybe it is time to tweak Justice Jackson’s famous quip about the Supreme Court to read: “We are not slow because we are infallible, but we are slow only because we are final.”