Silence From the Court

On Wednesday night, Troy Davis was executed for a crime he may or may not have committed. But the real crime on Wednesday night was the action — or really the lack of action, the absolute radio silence — of the United States Supreme Court, which, as the nation watched and waited, did nothing for 203 minutes past the scheduled execution time. Or at least nothing anyone could see.

It is a truism of the American justice system that the Supreme Court operates in secret, unmoved by candlelight vigils and protests, polls and placard-wielding crowds. That is right and proper. It’s the reason the justices are unelected and also the reason they are required to write fully developed opinions and orders.

But we must keep in mind that the court knew for several days that the execution was scheduled for Wednesday at 7 p.m. It knew that it would receive a last-minute petition for a stay and that Georgia would not carry out the execution until it spoke. Under those circumstances, for it to consider a matter of life and death, while for over three long hours America and the world are told absolutely nothing, is a violation of that basic bargain. It is a show of power without reason and of authority without accountability.

For 203 minutes on Wednesday night Americans speculated and wondered, worried and guessed, without recourse — waiting for a single sentence from the Supreme Court. While the court considered the petition for far longer than was typical, all while communicating nothing, even Mr. Davis’s own lawyers were unclear as to why the delay had happened, what exactly the Supreme Court was debating, and when the court would decide Mr. Davis’s fate.

For 3 hours and 23 minutes the foremost lawyers and pundits in the country tried to guess at what was going on in Washington, while the Supreme Court’s Web site offered no information about the matter. If any other branch of government had exercised such power without explanation, it would have looked like all of democracy had been put on hold.

And then there’s the human dimension. Because while the court went dark for over three hours, a man waited to learn whether he would live or die, as did his family. The family of Mark A. MacPhail Sr., the Savannah police officer whom Mr. Davis was convicted of killing, waited for closure.

We may never know what took the Supreme Court so long. After all, only its formal opinions speak for the institution as a whole. And, usually, the American public accepts that state of affairs, embracing the rule of law as a vital tool of democracy.

But the court’s three long hours of silence on Wednesday night — perhaps a result of an internal debate among the nine justices, a procedural problem, or a good-faith but unsuccessful effort to reach consensus — represented a spectacularly public failure to acknowledge that in this day and age, no branch of government can go behind closed doors with no communication for an entire evening.

It wasn’t that we needed much. Just a one-sentence statement, even. A simple acknowledgment that much of the country was holding its breath would not have offended the court’s sense of gravitas. An acknowledgment that the life of the law is the people, not the court would have served.

That lack of awareness reflects badly on the court. Wednesday night could have been a teachable moment about what makes the court great, but the moment passed with silence, then an inscrutable one-sentence conclusion.

The relationship between the court, the public, the media, and new technology is deeply complicated, and the justices think hard about these issues. We respect that. But the institutional decision to say nothing while we waited appeared to be the court’s putting form over function, formal procedure before compassion.

The Supreme Court missed an opportunity on Wednesday night to remind the American public that, while justice must be blind, the justices are not blind to the needs of the American people — and of a capital defendant who would die without having gotten reasons or answers.

By Dahlia Lithwick, a senior editor at Slate who covers the Supreme Court and Lisa T. McElroy, an associate professor of law at Drexel University.

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