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Stay Denied in Leal

The Supreme Court's order is here.  It's 5-4, lined up as you would expect.

Leal and the United States ask us to stay the execution so that Congress may consider whether to enact legislation implementing the Avena decision. Leal contends that the Due Process Clause prohibits Texas from executing him while such legislation is under consideration. This argument is meritless. The Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment.

The United States does not endorse Leal's due process claim. Instead, it asks us to stay the execution until January 2012 in support of our "future jurisdiction to review the judgment in a proceeding" under this yet-to-be enacted legislation. Brief for United States as Amicus Curiae 2-3, n. 1. It relies on the fact that on June 14, 2011, Senator Patrick Leahy introduced implementing legislation in the Senate with the Executive Branch's support. No implementing legislation has been introduced in the House.

We reject this suggestion. First, we are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be. In light of MedellĂ­n I, it is clear that there is no "fair prospect that a majority of the Court will conclude that the decision below was erroneous," O'Brien v. O'Laughlin, 557 U. S. ___, ___ (2009) (slip op., at 2) (BREYER, J., in chambers), and our task should be at an end. Neither the United States nor JUSTICE BREYER, post, at 1-6 (dissenting opinion), cites a single instance in this Court's history in which a stay issued under analogous circumstances.
My previous post on the case is here.  Bill Otis's take on it is here.  Kenneth Anderson has this post at Volokh Conspiracy, followed by the usual VC comment thread of high intensity and low information.

Update:  Michelle Mondo has this story on the execution in the San Antonio Express.


As of about 7:30 EDT, Fox News is reporting that the execution has been carried out.

It's nice that the victim's long-suffering family got an apology and justice here. On that score, Justice Breyer's comment about a short stay, without even so much as a hint about the interest of the victim's family, whom all agree are blameless, was unfortunately not all that surprising. At least the dissenters bothered to put their views in writing.

On a bigger front, I am glad this execution was carried out. I don't agree with the views expressed here that the US should comply with the Avena decision. In my view, the decision was the result of little better than a kangaroo court. The result was so obviously wrong that one must consider the strong possibility that this was a poke in our eye or the result of a dislike of the American death penalty, or some combination thereof. Either way, I don't think it appropriate to subject our states or the victim's families to the indignity of giving that court a bit of legitimacy.

I applaud Rick Perry for his resoluteness here. Empirically speaking, it is not easy to resist the self-appointed solons. Of course, I still remember the execrable Kenneth Foster commutation. Hopefully, the Governor has learned from that.

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