Guerrero v. Busby
The Court removed a temporary pause on the execution of Edward Busby, allowing Texas to proceed immediately despite both sides' experts agreeing he is intellectually disabled — a condition the Constitution bars as a basis for execution.
Three justices dissented sharply, noting that Texas itself had previously joined Busby in asking courts to declare him ineligible for execution before reversing course.
How it got here: Texas courts declined to find Busby ineligible for execution; the Fifth Circuit stayed the execution; Texas asked the Supreme Court to vacate that stay.
The Case in Depth
What happened
Edward Busby was scheduled for execution in Texas. Both his own expert and Texas's expert concluded he is intellectually disabled, a condition that bars execution under the Constitution. Texas initially sided with Busby, joining him in asking Texas courts to declare him ineligible for execution. After Texas courts refused, Texas reversed its position and moved forward with the execution. A federal appeals court stepped in and temporarily paused the execution while it reviewed whether Busby was entitled to relief.
The question before the Court
Should the Supreme Court remove a temporary pause on the execution of a Texas man that a federal appeals court put in place while reviewing his claim that he cannot be executed because he is intellectually disabled — especially when experts on both sides agreed on that disability?
The Court's answer
Yes — the Court removed the Fifth Circuit's temporary pause and allowed Texas to proceed with the execution immediately. The brief, unsigned order gives no explanation for why the appeals court's stay did not meet the legal standard for remaining in place.
Three justices dissented, arguing the Court's action was especially hard to justify given that Texas's own expert had agreed Busby is intellectually disabled, and that Texas itself had previously asked courts to find him ineligible for execution. They argued the Fifth Circuit's pause was a careful, modest step to allow a full legal review before it was too late.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
People facing execution who claim intellectual disability — which the Constitution prohibits as a ground for execution — may face a harder time getting courts to pause their cases long enough for a full legal review. The ruling is especially notable because it allowed an execution to proceed on the same night the order issued, with no written explanation from the majority.
What changes now
The Fifth Circuit's stay has been vacated and Texas was authorized to carry out the execution the same evening the order issued. Because this is an emergency shadow-docket order with no written majority reasoning, it sets no formal precedent on the underlying constitutional question of whether Busby's intellectual disability bars his execution. Any further review of that merits question would require separate proceedings.
What this does not decide
The order does not decide whether Busby is in fact constitutionally ineligible for execution due to intellectual disability, nor does it resolve the underlying habeas claims the Fifth Circuit was reviewing. It addresses only whether the temporary stay should remain in place while that review continued.
Concurrences and dissents
How the Justices voted
Dissent (3). Justice Kagan (author), joined by Justice Sotomayor.
Dissent — Justice Kagan
Justice Kagan noted without further elaboration that she would have denied the application to vacate the stay, leaving the Fifth Circuit's temporary pause in place.
Dissent — Justice Jackson
Justice Jackson, joined by Justice Sotomayor, argued the Court was rushing to allow an execution it had no compelling reason to accelerate. She emphasized the extraordinary circumstance that Texas itself had previously joined Busby in arguing he should not be executed, and that both sides' experts agreed he is intellectually disabled. She criticized the majority for being unable to tolerate even a brief delay for a full legal review, calling the decision deeply troubling in a capital case. Read the full dissent →
How the Court got there
The legal reasoning, step by step
- Emergency applications to vacate a lower court's stay are reviewed under a demanding standard: the party seeking to lift the stay must show a strong likelihood of ultimately winning the legal dispute, along with irreparable harm from leaving the stay in place. Here, Texas argued the Fifth Circuit's pause was legally unjustified.
- The Court's one-line order vacated the Fifth Circuit's stay without providing any written explanation of its reasoning, concluding — implicitly — that Texas had met the bar required to lift the pause.
- The dissent challenged this conclusion on its face, pointing out that the core legal question — whether Busby's undisputed intellectual disability bars his execution under the Eighth Amendment's prohibition — had not yet been fully adjudicated by the Fifth Circuit, making the stay a minimal and appropriate step.
- Three justices argued that the unusual posture of the case — where the State had previously argued alongside Busby that the execution should not proceed — made the Court's decision to lift the stay especially difficult to justify, as it sided with Texas's current litigation position over its own earlier one.