(CNN) — The Supreme Court cleared the way for the resumption of the federal death penalty, in an unsigned order released after 2 a.m. ET Tuesday.
The court wiped away a lower court order temporarily blocking the execution of convicted killer Daniel Lewis Lee in a 5-4 vote.
Lee was scheduled to be executed Monday in what would have been the first federal execution in 17 years. On Monday, a federal judge blocked the planned execution of Lee, and three others, citing ongoing challenges to the federal government’s lethal injection protocol.
The court said that the death row inmates, including Lee, bringing the case “have not established that they are likely to succeed” in their challenge in part because the one drug protocol proposed by the government — single dose pentobarbital — has become a ‘mainstay’ of state executions.”
Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg reiterated in one dissent something he has said before: he thinks it’s time for the court to revisit the constitutionality of the death penalty.
“The resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution,” he said.
Justice Sonia Sotomayor, joined by Justice Elena Kagan and Ginsburg wrote separately to criticize the court’s “accelerated decision making “
“The court forever deprives respondents of their ability to press a constitutional challenge to their lethal injections,” she said.
In 2019, Attorney General William Barr moved to reinstate the federal death penalty after a nearly two-decade lapse.