In fractious time, ‘courtesy’ prevails at Supreme Court

The U.S. Supreme Court seems to be trying to hang together as the election campaign drives the rest of the country into feuding camps.

The latest sign came Thursday night when Chief Justice John Roberts provided the necessary fifth vote to delay an Alabama execution — even though he said he thought it should go forward. Roberts said his vote was a “courtesy” to four colleagues who wanted to block the execution until the court decided whether to take the inmate’s appeal. It averted what could have been an unseemly 4-4 split.

The move follows a similar step by Justice Stephen Breyer, who in August cast what he called a “courtesy” fifth vote in a transgender bathroom case. The move meant a student who identifies as male temporarily couldn’t use the boys’ bathroom at his high school.

The spirit of compromise stands in contrast to the bitter political debate over the court and its lingering vacancy. With Democratic presidential nominee Hillary Clinton holding a narrow lead in the polls, Republican senators including Richard Burr of North Carolina and Ted Cruz of Texas have raised the possibility that their party will block any Supreme Court nomination she makes.

Roberts’ vote spared Thomas D. Arthur, who had been schedule to die for a 1982 murder. In a one-paragraph statement, Roberts laid out several reasons why he didn’t view Arthur’s appeal as worthy of Supreme Court review.

“Four justices have, however, voted to grant a stay,” Roberts wrote. “To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy.”

“Courtesy fifths” used to be a more common practice in death penalty cases. They avert the situation in which the court agrees to hear an appeal — something that takes the votes of only four justices — while refusing to block the execution in the meantime.

Breyer, who often strives to be a consensus-builder on the court, alluded to that practice with his vote in the transgender case in August. He cited a 2008 opinion in which he lamented that, in that case, no member of the court’s conservative wing was willing to extend a courtesy fifth.

“His clear hope was that one of the conservative justices would provide the same courtesy in death penalty cases,” said Tom Goldstein, a Washington appellate lawyer and founder of the Scotusblog website, said in an e-mail. Roberts “did just that last night.”