FindLaw Forum: A divided Supreme Court remains civil over Napoleon Beazley By Edward Lazarus FindLaw Columnist Special to CNN.com

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(FindLaw) -- Last week's headlines from the Supreme Court left my head spinning. As was widely reported, the Court -- by a 3-3 tie vote -- refused to stop Texas' imminent execution of Napoleon Beazley.

Beazley had been convicted of killing the father of Michael Luttig, a judge on the U.S. Court of Appeals for the 4th Circuit. Only six justices participated in the decision; Justices Antonin Scalia, David Souter and Clarence Thomas recused themselves since they have personal relationships with Judge Luttig.

Justice Stephen Breyer was one of the three justices who voted unsuccessfully to stay Beazley's execution. Almost simultaneously with the Court's handing down its split decision, Breyer gave a speech in which he assured the public that civility and collegiality still reign supreme at the Court. Indeed, Breyer commented that during his entire tenure, he could not remember a single instance in which one justice had raised his or her voice to another.

Something is wrong with this picture. The justices are so divided over the death penalty (among so many issues) that, by an equally divided vote, they let Texas carry out a highly controversial execution. In light of this schism, can it really be true that no justice on either side would think the slightest ill thought about a colleague? If so, we ought to be worried about the depth of conviction of the justices. And, if not, why the Breyer charade?

The justices in conflict

A look at the history of tie votes and executions at the high court confirms that if Breyer's claim of collegiality -- even in the face of litigants' deaths -- is true now, it has not always been so.

In January 1985, the Court permitted Georgia to electrocute Roosevelt Green after his stay application failed by a 4-4 vote. Justices William Brennan, Thurgood Marshall, Harry Blackmun and John Paul Stevens voted in favor of a stay; Chief Justice Warren Burger and justices Byron White, William Rehnquist and Sandra Day O'Connor voted against.

In his petition to the Court, Green argued that his prosecution and sentencing was the product of race discrimination in Georgia's system of capital punishment. Almost every Georgia execution had already been put on hold as a federal appellate court addressed this issue. Green's case, however, had slipped through the cracks.

At the Supreme Court, the conservative and liberal justices -- who had been engaged in a long seesaw battle over the constitutionality of the death penalty -- split over whether to give Green a reprieve while the courts decided the legality of Georgia's death penalty regime. Ordinarily, Justice Lewis Powell provided the swing vote in such cases. But when Green's petition came to the Court, Powell was incapacitated, having almost died during prostate surgery a few weeks before.

At the time, bruising arguments over the death penalty had so polarized the Justices that none of the four voting against staying Green's case was willing, out of courtesy or collegiality, to honor the equal vote of the four who sought a delay. Hence, Green went to his death, though not without sharp recriminations within the Court.

One month later, with Powell still unavailable, the Court was put to another test. In the case of Morris Odell Mason, the justices again split 4-4 over a stay of execution, with only hours to go before Mason's schedule execution. In Mason's case -- as last week with Beazley's -- the Court was taken off the hook when a lower court granted Mason a last-minute reprieve.

The advent of the 'gentleman's fifth'

The Green and Mason incidents led the Court into an internal crisis. Under the Court's rules, it ordinarily takes five votes to obtain a stay of execution, but only four votes to have the Court accept a case for review. Thus, it was theoretically possible for a death row inmate facing execution to convince the Court to grant review in his case, yet be executed before the Court could do so, because he could not obtain the necessary fifth vote to stop the state from killing him in the interim.

In September 1985, this theoretical nightmare almost became a reality in the case of Willie Darden. The five conservatives (this time including Justice Powell) had become so fed up with what they viewed as liberal efforts to derail the death penalty that they refused to grant Darden a stay, even though the four liberals had voted to grant review in his case. Only a last-minute change of heart by Justice Powell saved Darden from being killed before the Court could consider his legal claims.

In the wake of Darden, after heated argument within the Court, Justice Powell agreed to serve as a "gentleman's fifth" vote for a stay whenever four justices voted to review a case. Still, after Powell's retirement, the conservatives allowed the 1990 execution of James Edward Smith, despite four justices voting to grant review in his case.

Following Smith's death, Justice White reluctantly assumed Powell's old role -- and it is said that such a person exists today.

A creepy collegiality?

Whatever else may be said about these internal battles of the 1980s and early 90s, they were not marked by collegiality and kind feelings among the antagonists.

Then, the conservatives' repeated, self-conscious choice to negate their colleagues' votes and ensure the death of a capital defendant was the product of extreme frustration and a belief that the liberals were disregarding basic limits on judicial authority. On the other side, the liberals viewed the conservatives' power play as immoral and lawless.

In light of this history and my basic sense of human nature, I would go so far as to say that the mere fact of the Supreme Court allowing an execution to proceed on a tie vote ought to be incompatible with the portrait of a well-functioning and collegial court that Justice Breyer paints.

What kind of collegiality is it, after all, where half the justices feel strongly that someone's life should be temporarily spared, but the remaining justices, rather than accede to this view, stand pat on the technicality that ties go to the executioner? The "gentleman's fifth" is an example of true collegiality. Never raising one's voice, even when the issue is life or death, is an example of, at best, a dubious etiquette.

Indeed, the case for the gentleman's fifth -- or, here, a gentleman's fourth -- was especially strong in last week's Beazley case, where, freakishly, three justices were unavailable to participate in the Court's potentially life-ending decision. The diminished number of Justices participating was a particularly strong reason for a stay, which would have allowed the time necessary for careful consideration and debate of the issues.

For some reason, many of the Justices -- most recently, Justice Breyer -- want us to believe that such issues as the death penalty or deciding presidential elections or curbing civil rights are matters of unearthly dispassion at the court. To the extent that this picture is accurate, one has to wonder why the justices don't consider the most important social and political issues of the day to be worthy of some blood, sweat, and tears. To the extent that the picture is false, one has to wonder why the Justices don't think the public deserves an honest account of the disagreements that, year after year, have reduced the meaning of the Constitution to a series of tie or near-tie votes.

Edward Lazarus writes about, practices and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books, most recently, "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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