Justice Kagan Brings the Heat in Dunn Dissent

Domineque Ray
Undated photo
Alabama Dep't of Corrections

Justice Kagan recently made waves for her impassioned dissent in the Court’s most recent death penalty decision. In Dunn v. Ray, the 5-4 majority vacated a stay of execution and allowed Alabama to execute Domineque Ray without the presence of his requested spiritual advisor, an imam. The majority opinion reads, in full:

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit on February 6, 2019, presented to JUSTICE THOMAS and by him referred to the Court, is granted.

On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).

Unlike the sterile majority opinion, Justice Kagan’s dissent tells a powerful story:

Holman Correctional Facility, the Alabama prison where Domineque Ray will be executed tonight, regularly allows a Christian chaplain to be present in the execution chamber. But Ray is Muslim. And the prison refused his request to have an imam attend him in the last moments of his life.

Lethal injection chamber at Holman Correctional Facility
Photo courtesy of AP

“Time” words cleverly and convincingly draw attention to the majority’s flawed opinion that Ray’s request to have an imam present was untimely:

The Alabama prison where Domineque Ray will be executed tonight . . . refused his request . . . . Yesterday, the Eleventh Circuit . . . stayed Ray’s execution . . . . Today, this Court reverses that decision . . . .

Justice Kagan also employs a series of rhetorical questions contrasted with short, clipped “answers” from the State to support her position that the State is attempting to push the execution through quickly:

Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say.

Short transitions, such as but, and, and so (rather than nonetheless, additionally, therefore, etc.), advance Justice Kagan's story about why the majority’s opinion is factually and legally flawed and do so in a way that makes the argument even more compelling. And Justice Kagan’s final sentences (minus her respectful dissent) are commanding:

Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.

The “short-circuit” term is masterful—per Justice Kagan, the Court is literally shorting the Circuit an opportunity to hear a claim that it wanted to consider. And referring to the State’s “preferred” execution date underscores what Kagan sees as the flippancy with which the majority has made a decision of great constitutional magnitude.

Elbert P. Tuttle Courthouse
Eleventh Circuit Court of Appeals

Compare Justice Kagan’s cool, clean sentences with the type we’re used to reading in many opinions, and you’ll see why her writing is so, so good:

Justice Kagan	The Alternative
Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death.	In this case, the defendant has advanced a potentially meritorious contention that his religious rights will be violated if the State goes forward with its planned execution.
The Eleventh Circuit wanted to hear that claim in full.	The Eleventh Circuit granted the defendant’s petition for stay of his execution to fully consider his First Amendment Establishment Clause claim.
Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.	Nonetheless, this Court has prematurely and improperly taken that decision out of the Eleventh Circuit’s hands in favor of allowing the State to proceed to carry out Ray’s death sentence.

The death penalty remains—rightly so—one of the most hotly debated issues in American law. Justice Kagan’s opinion stokes that continuing fire.