T.J. Kirkpatrick for The New York Times
WASHINGTON — The dissent, tinged with anguish and filled with bitter accusations, was not ready until almost 3 a.m. It described a rupture in the carefully tended norms of civility at the Supreme Court. And it provided a rare glimpse into ordinarily secret deliberations.
In seven angry pages, Justice Stephen G. Breyer recounted how the conservative majority on the court had refused his request to delay the execution of an Alabama inmate for a few hours so he and the other justices could discuss the matter in person at their usual Friday morning conference.
Instead, by a 5-to-4 vote in the middle of the night, the court allowed the execution to proceed, with the conservative justices in the majority and the liberals in dissent. Although that division was not unusual, the way the court got there was.
Justice Breyer’s dissent reflects that things have quickly gotten ugly at the court since the replacement of Justice Anthony M. Kennedy, who was a moderating force in capital cases, with the more conservative Justice Brett M. Kavanaugh.
The divide between the two sides has hardened in recent weeks, with conservative justices growing increasingly frustrated over what they considered excessive delays in carrying out executions. The liberal justices have in turn accused the majority of reckless haste that could give rise to executions so painful as to amount to torture.
Legal experts said the divisions in recent death penalty cases were a telling and disturbing sign about where the Supreme Court might be headed as it started to issue the term’s major decisions in the coming months.
“If the Supreme Court cares about its institutional legitimacy, and ultimate effectiveness, it will heal this long-festering wound before it attempts to persuade the country that in resolving the other thorny issues to come it has acted the way a judicial body should,” said Eric M. Freedman, a law professor at Hofstra University.
The dispute among the justices on Friday lasted long enough that Alabama officials postponed the execution of the inmate, Christopher L. Price, which had been scheduled for Thursday night. They said a new execution date would be set.
Late-night rulings on death penalty applications are not unheard-of, but they are seldom issued in the predawn hours. In his early morning dissent, almost certainly completed at home, Justice Breyer wrote that the court’s treatment of the case was deeply distressing.
“To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Justice Breyer wrote. “To proceed in this matter in the middle of the night without giving all members of the court the opportunity for…
