Thread by @JoshMBlackman

1/ J. Thomas, joined by Alito and Gorsuch, were still not done with Price v. Dunn (the Alabama death penalty case). Today #SCOTUS finally denied certiorari (a formality after the stay was denied). J. Thomas wrote a concurrence in the denial of cert "set the record straight"

2/ This dissent is unusually blunt for J. Thomas. He writes that "there is nothing of substance" to J. Breyer's assertions. He provides an "accurate recounting," suggesting that Breyer provided an "inaccurate recounting." (Though later Thomas says Breyer's facts had omissions)

3/ J. Thomas also shines light on precisely why the majority found that the appeal was untimely: "petitioner (like all other individuals) is presumed to be aware of the law and thus the June 30 deadline"

4/ Thomas also faults the Petitioner, who failed to make the election, "even though he was represented throughout this time period by a well- heeled Boston law firm." This argument builds into Thomas's position that the Petitioner's counsel employed a "litigation strategy"

5/ Thomas asserts that the key procedural error was that the District Court entered a stay *after* a notice of appeal had already been filed. This step has the effect of denying the district court of all jurisdiction over the case.

6/ Thomas states that Breyer's dissent had the effect (if not the purpose) to delay the execution until after the death warrant had already expired. This
"rationale does not withstand even minimal legal scrutiny."

7/ The District Court's stay was an abuse of discretion "because it manifestly lacked jurisdiction over the case, which was pending in the Court of Appeals."

8/ This issue recently arose in the Emoluments Clause litigation. After a notice of appeal was filed, the district court asked the Plaintiffs whether claims could be dismissed without prejudice. The 4th Circuit will likely find the District of Maryland erred.

9/ Next, J. Thomas states that counsel for Petitioner delayed their claim as part of a "litigation strategy," a phrase he uses two other times.

10/ Thomas explains that Bucklew "discourage[d]" "proliferation of dilatory litigation strategies." The discussion in Bucklew of the delay was not necessary to the holding, but it was quite deliberately placed.

11/ Thomas also faults the 11th Circuit for placing a burden on the state under the Glossip framework. And, the dissenters wanted the Court to "Court to engage in mere error correction"

12/ Thomas explains why it is impractical to discuss emergency applications at infrequently-held conferences. Also, he notes that opening up this option will "incentivize prisoners to file dilatory challenges to their executions by rewarding them with de facto stays of execution"

13/ J. Thomas would no doubt disagree with my modest proposal. washingtonpost.com/opinions/2019/…

14/ In short, J. Thomas articulates why #SCOTUS has taken such sharp action with respect to these applications: "The proper response to this maneuvering is to deny meritless requests expeditiously." /end