And It Makes No Difference Whether the Needed Fifth Vote is Missing Because . . .

There is considerable doubt about Richard Glossip’s guilt for a brutal 1997 murder in Oklahoma City, for which he has twice been sentenced to death. It also appears unquestionable that he has never gotten a fair trial. 

Glossip’s case is now before the U.S. Supreme Court, where his fate may actually be determined by the incoherence of the court’s recusal rules. 

In a nearly unprecedented move, Oklahoma’s Republican Attorney General Gentner Drummond joined the defense seeking a new trial for Glossip, on the ground that crucial exculpatory evidence had been unconstitutionally withheld from the defense in his earlier trials.  

Under most circumstances that would be enough to resolve the case in Glossip’s favor, but that is not what happened. The Oklahoma courts denied Glossip’s petition, despite Drummond’s intervention, and the Supreme Court appointed an amicus curia to argue in support of the conviction.

Only eight justices were on the Supreme Court bench when Glossip’s case was called on Oct. 9. Justice Neil Gorsuch had recused himself months earlier before the Supreme Court granted Glossip’s petition for review. 

Although Gorsuch gave no reason for recusal, it was presumably because he had ruled against Glossip in 2013, in a different iteration of the case, regarding different legal issues, when still serving as a judge of the U.S. Court of Appeals. 

Gorsuch is among the court’s most conservative members, but his absence may nonetheless doom Glossip’s appeal. 

It seems likely that there are four justices inclined to vote in Glossip’s favor. The three liberals — Justices Ketanji Brown Jackson, Elena Kagan, and Sonya Sotomayor — made their sympathies apparent at the oral argument. Another justice, whose name has not been disclosed, must have provided the necessary fourth vote to accept the case.  

It takes five justices, however, to reverse a conviction; a 4-4 tie would leave the death sentence in force. Thus, Gorsuch’s recusal has the same effect as a negative vote. Even a small chance of winning his vote would have been a conceivable advantage for Glossip’s case. 

As the late Justice Antonin Scalia once explained, “The petitioner needs five votes to overturn the judgment below, and it makes no difference whether the needed fifth vote is missing because it has been cast for the other side, or because it has not been cast at all.” 

Oh well!

Opinion: Justice Gorsuch’s recusal may have doomed a man to death, The Hill