To get the Supreme Court to review your case on the merits, you need the votes of at least four justices. But if you are asking them to temporarily block a lower court ruling against you, you need five votes. In death penalty cases in particular, this can get tricky: there may be four votes to have briefing and oral argument of an inmate’s case on the merits, but not necessarily five votes to halt his execution until the Supreme Court can weigh in. To address this scenario, a practice known as the “courtesy fifth” has developed, in which a fifth justice will provide the vote needed to stay the execution, even if that justice might not have otherwise been inclined to do so. However, the “courtesy fifth” practice had become less consistent in recent years, perhaps as a result of the ideological divide on the court.
The “courtesy fifth” was in the spotlight last summer, in the case of a transgender student who identifies as a boy and wants to be able to use the boys’ bathroom at his Virginia high school. After the student, known in the litigation as “G.G.,” won in the lower courts, the school board went to the Supreme Court and asked it to block those rulings until the school board could file a petition for review. In that case, Justice Stephen Breyer joined the court’s four more conservative justices in voting to put the lower courts’ rulings on hold; he indicated that he was doing so as “a courtesy” to preserve the status quo until the justices could decide whether to grant review on the merits. Some court watchers were surprised by Breyer’s vote, but others saw it as possibly a strategic move to encourage a return to the “courtesy fifth” practice.
If Breyer’s decision to provide a “courtesy fifth” in G.G. was indeed strategic, it may well have paid off. Last night, it was Chief Justice John Roberts who provided the “courtesy fifth,” this time in the case of an Alabama death row inmate who was scheduled to die at 6 p.m. yesterday. News reports indicate that Alabama officials had agreed to postpone the execution while the Supreme Court considered the case; at approximately 9:30 p.m. Justice Clarence Thomas, who is responsible for emergency appeals from the geographic area that includes Alabama, issued a preliminary stay, presumably to give the full court an opportunity to consider the request for a stay.
In an order issued shortly before 11 p.m. yesterday, the full court blocked Thomas Arthur’s execution until it can rule on his petition for certiorari. The order was accompanied by a statement from Roberts in which he indicated that, in his view, Arthur’s case does not meet the court’s “ordinary criteria for a stay.” However, he continued, four other justices had voted to stay Arthur’s execution. “To allow them to more fully consider the suitability of this case for review,” he noted, he had decided “to vote to grant the stay as a courtesy.”
The order also noted that Thomas and Justice Samuel Alito would have denied Arthur’s application to block his execution. There is no way to be certain, but it is likely that the court’s four more liberal justices voted for the stay – which would mean, given the Chief Justice’s decision to provide a “courtesy fifth” vote, that Justice Anthony Kennedy did not vote to stay the execution.
One final point is worth noting. Although we normally think of the “courtesy fifth” coming when there are four votes to grant certiorari, the “courtesy fifth” in both G.G.’s and Arthur’s cases only involved four votes to grant a stay. In G.G.’s case, the petition for certiorari had not yet been filed, and Breyer’s concurring opinion indicated that “four Justices have voted to grant the application” for a stay. In Arthur’s case, the Chief Justice’s statement specifically refers the vote by four justices “to grant a stay.” Whether this is a departure from past practice or merely an anomaly remains to be seen.