Alito: Surprise or Feint?

Many seem to be crowing about Alito's first opinion on the Supreme Court in the Michael Taylor death row case. Alito sided with the plaintiff, who sought a stay of execution on the grounds that lethal injection was "cruel and unusual." A Chicago Tribune headline called the vote a "surprise" (beware, this appears on the front page but is not the header of the AP story itself and may get changed). Nonetheless, people do seem to be noting it as unexpected. But let's just note here, this case is not about ceasing the execution, Alito is only supporting a stay of it. Taylor will still likely be executed and Alito is simply saying that lethal injection might not be the best way to do that. But it still will be done.

Frankly, this has all the appearances of a feint. This vote is fairly meaningless and cannot be considered as having much of a jurisprudential impact on cases outside this narrow realm of "cruel and unusual" (though the death penalty has been argued against on the grounds that execution is, in and of itself, cruel and unusual). Alito's opinion generates "surprise," he looks like a reasonable jurist on his first day, people breath a sign of relief and think, hey, maybe this guy isn't so bad. But again, this is only a decision regarding the best way to execute someone, not that it shouldn't be done.

Be warned, this is not a Supreme Court decision by which to judge Alito's temperment in cases against the state.