Courtesy votes offer window into court

WASHINGTON — An Alabama death row inmate may be alive today because a transgender Virginia high school student was denied the use of the bathroom of his choice this year.

The two seemingly unrelated cases have one thing in common: In each, a Supreme Court justice switched sides to provide a needed fifth vote to preserve the status quo.

In August, Justice Stephen Breyer broke with liberal colleagues to provide the requisite fifth vote against high school senior Gavin Grimm in what he called “a courtesy” to four conservative justices. Late Thursday, conservative Chief Justice John Roberts did a similar favor, switching sides to stay the execution of inmate Tommy Arthur, convicted in the 1982 murder-for-hire of a woman’s husband.

The two votes in emergency appeals offer a rare peek behind the curtain about how the high court operates, especially at a time when it is one justice short of its nine-member strength because of the death in February of conservative Antonin Scalia. They could portend a return to a time a generation ago when the court more often halted an execution when only four justices initially wanted to do so.

Some liberal commentators puzzled over Breyer’s vote on the transgender student’s case in August, because he typically is part of the liberal bloc in civil rights cases. But the court’s last-minute vote to halt the execution may provide an explanation, said Supreme Court lawyer Tom Goldstein.

“The chief justice seems to have, in a sense, returned the favor for Justice Breyer agreeing to put on hold a ruling in favor of a transgender student,” Goldstein said.

Goldstein said he sees the votes as a signal to a politically polarized country that the court can still function collegially.

Providing a fifth vote to halt executions had once been more common, but it’s been less in evidence in recent years. Eight years ago, Breyer complained in another eleventh-hour death penalty appeal that “it is particularly disappointing that no member of the majority has proved willing to provide a courtesy vote for a stay,” even though four justices wanted one.

Scalia’s death has deprived the court of a vocal opponent of efforts to delay executions. Breyer, on the other hand, has become a more outspoken critic of the death penalty. He was joined by Justice Ruth Bader Ginsburg in his 2015 opinion in which he concluded after more than 20 years as a justice that the death penalty probably is unconstitutional.

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