In a Missouri death row case on Monday, Justice Neil Gorsuch, perhaps reacting to sharp criticism of the court's refusal to delay the execution of an inmate who wanted his imam present in the death chamber, appeared to impose a new and higher bar on last-minute execution stays, drawing a rebuke from Justice Sonia Sotomayor.

“Last-minute stays should be the extreme exception, not the norm, and 'the last-minute nature of an application' that 'could have been brought' earlier, or 'an applicant's attempt at manipulation,' 'may be grounds for denial of a stay,'” Gorsuch wrote in his 5-4 majority opinion in Bucklew v. Precythe.

Gorsuch's two-page commentary at the end of his majority opinion was “troubling dicta” that was “wholly irrelevant” to the issue before the court, Sotomayor said in her dissent.

“I am especially troubled by the majority's statement that 'last-minute stays should be the extreme exception,' which could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye,” Sotomayor wrote.

The issue before the justices was not delays in execution, but whether Russell Bucklew's proposed alternative to execution by lethal injection—nitrogen hypoxia—met the high court's test of a feasible, reduced risk of severe pain. The majority held it did not.

Gorsuch, joined by Chief Justice John Roberts Jr. and Justices Clarence Thomas, Samuel Alito Jr. and Brett Kavanaugh, ended his 31-page opinion with two pages devoted to last-minute execution stays.

Gorsuch cited as an example the court's decision on Feb. 7 in Dunn v. Ray, a denial of an execution stay that would draw criticism from conservatives and liberals.

The divided court vacated a stay of execution imposed by a federal appellate court that wanted to hear Domineque Ray's religious discrimination claims. Ray argued the prison's refusal to allow an imam to attend him during his final moments violated the First Amendment's establishment clause.

The high court, over the dissenting votes of Justices Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, gave no reason for its unsigned ruling. The majority only cited a 1992 decision holding that “a court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”

The decision triggered widespread criticism, which snowballed after the court, with Gorsuch and Thomas dissenting, on March 28 granted a stay of execution to a Texas inmate named Patrick Murphy. In that case, Murphy challenged the prison's refusal to allow his Buddhist spiritual adviser to accompany him into the death chamber. Kavanaugh joined the majority to block Murphy's execution.

There was little significant difference between the Ray and Murphy timelines in seeking stays of their executions, according to their lawyers. Some court watchers suggested the court's grant in Murphy's case may have been a reaction to the criticism the court received after denying Ray a stay to allow his imam to be by his side.

In a lengthy footnote on Monday, Gorsuch did not back down from the Ray decision. Gorsuch accused the Bucklew dissenters of “seeking to relitigate” Dunn v. Ray. He laid out for the first time the nature of the delay in Ray's case that prompted the majority to vacate the lower court stay.

Gorsuch claimed that a state statute had put Ray “long on notice” that there was a question as to whether his adviser could go into the execution chamber or had to remain outside.

Judge Neil Gorsuch testifies before the Senate Judiciary Committee during the second day of his confirmation hearing. (Photo: Diego M. Radzinschi / ALM)

“Yet although he had been on death row since 1999, and the state had set a date for his execution on November 6, 2018, he waited until January 23, 2019—just 15 days before the execution—to ask for clarification,” Gorsuch wrote. “He then brought a claim 10 days before the execution and sought an indefinite stay. This delay implicated the 'strong equitable presumption' that no stay should be granted 'where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.'”

Before addressing what she described as Gorsuch's “skewed view of the facts” in the Ray case, Sotomayor, in her dissenting opinion, wrote that Gorsuch's comments on last-minute stays if “mistaken for a new governing standard, they would effect a radical reinvention of established law and the judicial role.” The courts' equitable discretion in handling stay requests, she said, is governed by “well-established principles.”

Sotomayor then went footnote to footnote with her challenge to Gorsuch's view of the Ray facts.

“Even today's belated explanation from the majority rests on the mistaken premise that Domineque Ray could have figured out sooner that Alabama planned to deny his imam access to the execution chamber,” Sotomayor wrote. And she quoted from Kagan's dissent, which noted that “the prison refused to give Ray a copy of its own practices and procedures” that would have clarified the degrees of access by an imam or a Christian spiritual adviser.

Justice Stephen Breyer, who wrote the main dissent in Monday's case, more briefly at one point took on Gorsuch's use of the Ray decision to address delays in executions.

“In the view of some of us, the prisoner's claim—that prisoners of some faiths were entitled to have a minister present at their executions while prisoners of other faiths were not—raised a serious constitutional question,” Breyer said. “And therein lies the problem. It might be possible to end delays by limiting constitutional protections for prisoners on death row. But to do so would require us to pay too high a constitutional price.”