Judge David Tuttle’s new book, aptly titled imagine, received much media attention for his criticism of the Roberts Court. But much of the book focuses on insights into judgment. I’ve just started reading this book, but I admire his tick-tock account of the July 2020 capital case. Daniel Lee Lewis’ case moved quickly from district court to the D.C. Circuit to the Supreme Court in about 24 hours. Apparently the Supreme Court can roar at lower court judges when they take too long!
Here is a snippet of the chronology:
but everything has changed 10:30 am When I received an email from court staff reporting that a district court judge had just blocked the first of several executions planned by the Trump administration. The government had planned to execute Daniel Lewis Lee, a convicted murderer, by lethal injection that afternoon in the federal death chamber in Terre Haute, Indiana. But the district court temporarily halted the execution, and our staff anticipates that the Justice Department will soon ask us to overturn the district court’s decision and allow the execution to proceed. . . .
exist 11:52 am The Justice Department informed the court that, as expected, the government wants us to immediately revoke the order blocking Lee’s execution so that the case can proceed as planned. Now it is up to our panel of three judges – two other D.C. Circuit judges and me – to review the district court’s ruling and decide whether Lee lived or died that day. Typically, the appeals process takes several months or even longer. . . . Nonetheless, respecting the government’s request for speed, we order Lee’s attorneys to pass 5:15 pm Government reply 7pm. . . .
When the briefs arrived, my paralegal read them aloud to me via Zoom, reading them as fast as possible, pausing only for a few sips of tea to keep her voice up. . . . two hours After reading hundreds of pages, I concluded that the district court’s delay in enforcing Lee’s order was not unlawful. . . .
Two of my colleagues, Justices Thomas Griffith and Patricia Millett, agreed. If you’re used to thinking of judges as politicians in robes, you might think that Judge Griffith was appointed by a Republican president (George W. Bush) and that Judge Millett was appointed by a Democrat (Barack Obama ) appointed. But they are judges, not politicians, and they all saw what I (appointed by Democrat Bill Clinton) saw: serious constitutional claims, a well-thought-out district court order, and no legal basis to overturn it. . . .
My paralegal and I began drafting an opinion, she on her desktop and me on my black Braille computer. It’s the size of a keyboard, has six rectangular Braille buttons, and connects to headphones so I can hear words as I type. Together we drew up a draft and I sent it to Judges Griffith and Millett for their comments. At 9:51 that night, as we were exchanging edits and refining the draft, we received word from the Supreme Court that the justices were growing impatient. We were told that the court “really wants us to take action tonight” – “within an hour” if possible. This pressure is highly unusual, however, we recognize the higher authority of the Supreme Court and do our best to comply. exist 11:24 pm, we expressed our opinion and rejected the government’s request to continue enforcement. We explained that the case involved “novel and difficult constitutional issues” that required “further factual and legal development.” We then scheduled all remaining briefings to take place over the next ten days, much sooner than usual. less than three hours laterAbout 2:00, the Supreme Court voted 5-4 to overturn us. The court order was unsigned, but the name of the person who approved Lee Myung-bak’s immediate execution was apparent because all four dissenting judges signed the dissenting opinion. The five people in the majority are the court’s so-called conservatives: Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. . . .
Less than six hours later, 8:07 amthe government executed Daniel Lewis Lee.
What a compelling, engaging narrative. Tuttle writes well.
I have long suspected that the Supreme Court prods lower courts when urgent cases in the shadow docket do not move quickly enough. But this is the first time I’ve seen a judge confirm this.
For those who are curious, Tuttle did not discuss his service with then-Judge Kavanaugh.
***
I have been very critical of Supreme Court justices who sign lucrative contracts to write memoirs immediately after their appointment. It would be much better if they lived life to the fullest and then reflected. There is much worthy of study and praise in Judge Tuttle’s decades-long career as a judge. I have reason to believe he didn’t receive the seven-figure advance.
