Conservative justices on the Supreme Court overruled lower courts in a middle-of-the-night order and said an Alabama execution could proceed, over the objections of their liberal colleagues who wanted to discuss the case Friday morning.

The order came too late for the state to carry out the execution of Christopher Lee Price, and Alabama will have to ask a state court to set another execution date.

But the 5-to-4 ruling by the Supreme Court indicated that its new conservative majority is far less likely to agree to last-minute stay requests from those facing execution. It also emphasized the stark divide between conservative and liberal justices on capital punishment and the most humane way to carry it out.

“What is at stake in this case is the right of a condemned inmate not to be subjected to cruel and unusual punishment in violation of the Eighth Amendment,” wrote Justice Stephen G. Breyer, objecting to the majority’s decision.

He added, “To proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”


An undated photo of Christopher Lee Price. (Alabama Department of Corrections/AP)

He was joined by his fellow liberal colleagues Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

It was unclear Friday what would happen next in Price’s case. A spokesman for the office of Alabama’s attorney general said it was still reviewing the Supreme Court’s decision and “cannot yet comment on our next steps.”

Price, sentenced to death for his role in murdering an Alabama minister in 1991 with a sword and a dagger, was asking to be executed by inhaling nitrogen gas, a process called nitrogen hypoxia, rather than risk a “botched” execution by injection.

Alabama allows nitrogen hypoxia but has never used it in an execution.

But the Supreme Court majority said Price had missed his chance to elect that manner of death.

In a brief, unsigned order, the court’s conservatives said that, in June 2018, death-row inmates in Alabama were given 30 days to elect nitrogen hypoxia. While 48 inmates did so, Price did not.

“He then waited until February 2019 to file this action and submitted additional evidence today, a few hours before his scheduled execution time,” said the order from Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.

That majority earlier this year allowed the execution of a Muslim inmate in Alabama who had complained that he was not allowed an imam by his side at his death, while Christian inmates could have a chaplain with them. The five justices suggested that the legal action had come too late.

The conservatives also recently rejected an appeal from a Missouri inmate who said that lethal injection in his case could cause excruciating pain because of a rare medical condition that could cause him to choke on his own blood during the process. The court ruled, 5 to 4, that Russell Bucklew had not proved that lethal injection would choke him or that another manner of execution would alleviate the problem.

The number of executions nationwide has dropped significantly in recent years. There were 25 death sentences carried out last year, down from 98 in 1999. So far this year, three executions have been carried out — two in Texas and one in Alabama — down from seven at the same point in 2018.

Breyer’s dissent revealed the behind-the-scenes maneuvering that accompanies execution-stay requests.

“Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our court this evening,” Breyer wrote.

After Price obtained stays from a district judge and the U.S. Court of Appeals for the 11th Circuit, the state of Alabama asked the Supreme Court to intervene after 9 p.m. Thursday.

Breyer wrote that he requested the court take no action until Friday, when the justices were scheduled to meet in private conference to discuss other matters.

“I recognized that my request would delay resolution of the application and that the state would have to obtain a new execution warrant, thus delaying the execution by 30 days,” Breyer wrote. “But in my judgment, that delay was warranted, at least on the facts as we have them now.”

But he said the majority would not agree to that, “thus preventing full discussion among the court’s members. In doing so, it overrides the discretionary judgment of not one, but two lower courts. Why?”

The court’s ruling was emailed to reporters at 2:51 a.m. Friday.

While the deliberations proceeded in Washington, Alabama officials decided to halt Price’s execution just before the death warrant expired at midnight. That left them angry, as well.

“This evening, the state of Alabama witnessed a miscarriage of justice,” Gov. Kay Ivey (R) said in a statement.

The state’s attorney general, Steve Marshall, said the execution’s delay meant that relatives of Bill Lynn, the minister Price was convicted of killing in 1991, were “deprived of justice.”

“They were, in effect, re-victimized by a killer trying to evade his just punishment,” Marshall said in a statement. “This 11th-hour stay for death row inmate Christopher Price will do nothing to serve the ends of justice. Indeed, it has inflicted the opposite — injustice, in the form of justice delayed.”

He vowed that “justice will be had” for Lynn.

Mark Berman contributed to this report.