Gorsuch faced early test in court's life-and-death power

Grassley predicted any new Supreme Court nominee would come from the list of potential justices put forward by Trump before he won the election. The justices voted 5-4 to reject an emergency application brought by several inmates before Arkansas executed convicted murderer Ledell Lee.

Lee became the first person executed in Arkansas in almost 12 years and that state is planning to put another three men to death before its supply of the key execution drug midazolam expires at the end of the month. The vote on the "nuclear option" prior to the confirmation of Justice Neil Gorsuch earlier this month, has changed the process for confirming justices.

Gorsuch and the other justices who would not provide a fifth vote to stop Lee's execution didn't write anything Thursday - standard practice for the prevailing side in emergency appeals.

Breyer talked about the seeming randomness of the death penalty, pointing to the looming expiration of the state's supply of midazolam as the primary factor motivating Arkansas to seek to execute Lee and seven other men over the course of two weeks.

Lawyers for the eight inmates, including Lee, had argued the state's rush to the death chamber amounted to cruel and unusual punishment, violated the inmates' right to counsel and their right to access the courts and counsel during the execution process. Less than a week after Neil Gorsuch was confirmed to replace the late Antonin Scalia on the nation's highest court, Grassley said more judiciary shakeups were likely on the way. The Supreme Court's default approach to emergency applications is to deny them, whether from a state or a prison inmate. Gorsuch heard his first arguments as a justice on Monday.

The question is whether McWilliams has a right to an independent medical expert to assess whether he is mentally disabled and therefore ineligible for execution. The New York Times has reported that the Trump administration is already looking at its next nominee should Kennedy decide to leave the Court.

The court's conservatives, including Gorsuch, would be expected to uphold capital punishment.

  • Larry Hoffman