After the execution of Marcellus Williams, the Supreme Court hears the case of Richard Glossip

The Republican-appointed majority of the Supreme Court refused Tuesday night to stop the execution of Marcellus Williams, despite doubts about his guilt and the Prosecutor Objections to the execution were raised. Coincidentally, the same Supreme Court that approved Williams’ execution by lethal injection in Missouri will hear another capital crime case in which death row inmate Richard Glossip maintains his innocence and the state of Oklahoma agrees that he should get a new trial.

The two cases came to trial during an unusually high number of executions across the country recently. And while there are differences between the Williams and Glossip cases, the Roberts court’s unexplained refusal to stay Williams’ execution reminds us of the court’s tendency to push capital crime defendants toward death even when important questions remain unresolved or government officials object—or both.

A key difference between the Williams and Glossip cases is the lineup of parties. While the prosecutor currently representing the St. Louis office that secured Williams’ conviction – Democrat Wesley Bell – tried to block the execution, Missouri’s Republican Attorney General Andrew Bailey successfully appealed Williams’ execution for the 1998 murder of Felicia Gayle. So it was not a situation where the state’s legal counsel agreed with the defense on appeal.

Glossip’s case is different. When he asked the judges to stay his execution last year, Oklahoma Attorney General Gentner Drummond (a Republican, by the way) agreed that Glossip should receive a stay and a retrial because the state had acknowledged that he was convicted of prosecutorial misconduct in the 1997 murder of Barry Van Treese.

With this unusual agreement, the justices halted Glossip’s execution. But instead of sending the case back to Oklahoma for a new trial, the Supreme Court appealed and appointed a third party to defend the state court’s ruling against Glossip. The Supreme Court hearing will take place on October 9, in the first week of the new term. A decision is expected by July.

In his petition to the justices, Glossip asked them to consider due process issues, including whether overturning his conviction was necessary when even the state no longer attempted to defend it.

But by reopening the case rather than simply sending it back for a retrial, the justices added a complex procedural question that they could use to authorize Glossip’s execution: “Whether the Oklahoma Court of Appeals’ finding that the Oklahoma Post-Conviction Procedure Act precludes post-conviction relief provided an adequate and independent basis for judgment under state law.” The court-appointed representative arguing against Glossip (and the State of Oklahoma) has dutifully argued in a brief that the justices lack authority to consider the due process issues and that the state court need not accept the state’s admission of error.

Oral arguments next month could reveal whether the court majority will raise that procedural hurdle against Glossip or whether it will grant the state’s motion to grant the defendant a new, constitutional trial.

Unlike in Williams’ case, where the three Democratic-appointed justices opposed denying his reprieve, the court will be understaffed in a way that could help the defendant. Justice Neil Gorsuch, who has ruled against death row inmates in split decisions, has himself recuse himself. The Trump-appointed judge did not explain why, but it is presumably because, as a federal appeals judge in the Oklahoma district court, he sat on (and ruled against) an earlier case against Glossip years ago.

Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the most important legal issues. The newsletter will return to its usual weekly publication when the next Supreme Court term begins in October.