Following the Supreme Court’s decision not to grant a stay in an Alabama execution in spite of a clear division in the court, Fix the Court executive director Gabe Roth released the following statement:

It has been exasperating enough as recent Supreme Court cases on voting rights, marriage, health care and campaign finance have all been decided by a one-justice margin, yet we have reached a new low when a man was put to death due to a 4-4 tie. (It’s no wonder that the court buried Thursday’s decision under the heading “miscellaneous order” two pages deep on its website.)

It’s even worse when one remembers from where the case originated. Alabama inmate Ronald Smith was convicted by a jury, which recommended a life sentence, but the judge in the case overruled them and condemned Smith to death. Then, the state’s top court – which has history of contravening federal judgments on religious displays, marriage equality and more – upheld the death decree, saying its uncommon sentence-swap regimen is somehow different from Florida’s former sentencing system, which the Supreme Court ruled unconstitutional last year. Smith remained on death row until his execution.

In deadlocked cases like these, especially when the lower court is so injudicious and its sentencing so unusual, Chief Justice John Roberts has the responsibility to step in and restore some order to the legal process. In the future, as he had done previously, he should give what is called a “courtesy fifth (vote),” which would stay an execution and give the court as a whole the opportunity to consider the merits of a case – and not just a last-minute motion whose denial resulted in an execution.