I blogged over the weekend about the Ninth Circuit’s puzzling new case stopping an execution to allow for First Amendment litigation over right to access the details of how the execution will be carried out. The state petitioned for rehearing en banc, and today the Ninth Circuit denied the petition. Two dissents from that denial were issued, one by Chief Judge Kozinski by himself and one by Judge Callahan joined by ten other judges. Kozinski’s dissent begins:
I have little doubt that the Supreme Court will thwart this latest attempt to interfere with the State of Arizona’s efforts to carry out its lawful sentence and bring Wood to justice for the heinous crimes he committed a quarter century ago. There is little I can add to the irrefutable arguments in Judge Bybee’s dissent and Judge Callahan’s dissental [aka dissent from denial of rehearing en banc]. If Baze could not get a stay of execution under the Eighth Amendment, see Baze v. Rees, 553 U.S. 35, 62–63 (2008), Wood certainly is not entitled to one under the First.
The eleven judges who voted for rehearing are Kozinski, Callahan, O’Scannlain, McKeown, Tallman, Bybee, Bea, M. Smith, N.R. Smith, Ikuta, and the recently-confirmed Judge Owens.
I share Kozinski’s sense that the Supreme Court will take this case and reverse. I assume they’ll focus on the First Amendment question because of the split, but it will be interesting to see if they also weigh in on the remedies issue that I blogged about over the weekend.