Page:William P. Barr, Attorney General. Et Al. v. Daniel Lewis Lee, Et Al.pdf/9

Rh , dissenting That outcome is hard to square with this Court's denial of a similar request by the Government seven months ago in this very litigation. See Barr v. Roane, 589 U. S. ___ (2019). That order prohibited the Government to proceed with executions before the Court of Appeals could address respondents' different, but equally serious statutory challenge to the federal execution protocol. And in a separate statement, three Members of this Court contemplated that respondents here would not be executed before "the merits of their Administrative Procedure Act [APA] claim [are] adjudicated." Id., at ___ (statement of, respecting denial of stay or vacatur) (slip op., at 2). They maintained that "in light of what is at stake, it would be preferable for the District Court's decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out." Ibid.

These statements now ring hollow. By overriding the lower court's stay, this Court forecloses any review of respondents' APA claims and bypasses the appellate court's review of a novel challenge to the federal execution protocol. It does so despite the fact that, whatever may have been true on the records presented in previous cases, see, e.g., Zagorski v. Parker, 586 U. S. ___ (2018), the parties here introduced conflicting expert evidence about the likelihood that pentobarbital causes pain and suffering before rendering a person insensate, which no fact finder has adjudicated.

Once again, the Court has chosen to grant an emergency application from the Government for extraordinary relief. Wolf v. Cook County, 589 U. S. ___, ___ (2020) (, J., dissenting from grant of stay) (slip op., at 5). The dangers of that practice are particularly severe here, where the grant of the Government's emergency application inflicts the most irreparable of harms without the deliberation such