Clarence Thomas rarely speaks and not just in public. He is famously reticent when working on the highest court in the land, so when he does speak people listen.
And he just issued, for a Supreme Court judge, a blistering rebuke of fellow justice the liberal Stephen Breyer. From The Washington Times:
Justice Clarence Thomas wanted to make sure there was no doubt about the heinous crime of Christopher Lee Price, whose attack on an Alabama minister nearly scalped the man, leaving him to a slow and painful death.
In an opinion Monday, Justice Thomas defended the Supreme Court’s decision to approve Price’s execution and blasted fellow Justice Stephen G. Breyer, who had tried to erect roadblocks on the path to the execution chamber last month.
It was the latest skirmish over the death penalty, which during an otherwise hum-drum year for the high court has emerged as a surprising source of division for the justices, some of whom have signaled deep skepticism of continued use of the extreme penalty.
Left without a broad case to deliver an outright ban, they instead have settled for trying to chip away at how and when the states can carry out the death penalty.
“There appears to be four votes to find the death penalty unconstitutional, if not as a matter of doctrine then as a matter of practice,” said Ilya Shapiro, a legal scholar at the libertarian Cato Institute.
Price, after losing years of appeals, mounted one last attempt to stop his execution. While he was awaiting death, Alabama added asphyxiation by nitrogen hypoxia as an alternative to lethal injection. But Price failed to pick the method in time.
As his execution approached, however, he lodged a challenge, saying injection was too painful for him, violating his constitutional rights against cruel and unusual punishment.
It turned out Alabama had yet to set up the nitrogen hypoxia protocols, which would have delayed his death.
With the execution time looming, Alabama asked the Supreme Court for permission to proceed.
Justice Breyer mounted an objection, saying he wanted a delay so the entire court could talk the case over, aware that would push the matter beyond the expiration of Alabama’s death warrant for the lethal injection.
In the end, the court overruled Justice Breyer 5-4 — but his delay ended up busting Alabama’s deadline anyway, forcing the state to start over in scheduling a new execution.
“To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Justice Breyer wrote in scolding his colleagues.
That prompted Justice Thomas’s rebuke Monday.
He said Justice Breyer got his “way by default” in forcing the delay and said death-row inmates are counting on the court’s anti-death penalty minority to stymy executions.
“To the extent the court’s failure to issue a timely order was attributable to our own dallying, such delay both rewards gamesmanship and threatens to make last-minute stay applications the norm instead of the exception,” Justice Thomas wrote.