The Republican-appointed majority on the Supreme Court refused to stop the execution of Marcellus Williams Tuesday night, despite doubts about his guilt and the public prosecutor object to its execution. Coincidentally, the same Supreme Court that allowed Williams’ death by lethal injection in Missouri will hear oral arguments in another death penalty case in which condemned inmate Richard Glossip maintains his innocence and the state of Oklahoma agrees to a new trial.

The two cases come before the justices amid an unusually high number of executions that have taken place recently across the country. And while there are differences between the Williams and Glossip cases, the Roberts Court’s inexplicable refusal to stay Williams’ execution is a reminder of the court’s tendency to send death-row defendants to their deaths even when weighty questions remain unresolved or government officials object — or both.

One key difference between the Williams and Glossip cases is how the parties positioned themselves. While the prosecutor currently representing the St. Louis office that obtained Williams’ conviction — Democrat Wesley Bell — attempted to prevent the execution, Missouri’s Republican Attorney General Andrew Bailey successfully appealed Williams’ death for the 1998 murder of Felicia Gayle.

Glossip’s case is different. When he asked the justices last year to stay his execution, Oklahoma Attorney General Gentner Drummond (a Republican, by the way) agreed that Glossip should be granted a stay, as well as a new trial, because of what the state admitted was prosecutorial misconduct that led to his conviction for the 1997 murder of Barry Van Treese.

With that unusual agreement presented to them, the justices halted Glossip’s execution. But instead of sending the case back to Oklahoma for a new trial, the high court allowed a full appeal and appointed a third party to argue in defense of the state court’s ruling against Glossip. The Supreme Court hearing is scheduled for Oct. 9, the first week of the new term, with a decision expected in July.

In his petition to the judges, Glossip asked them to consider fair trial issues, including whether his conviction should be overturned if even the state no longer wishes to defend his conviction.

But by accepting the case instead of simply sending it back for a new trial, the justices added a complicated procedural question they could use to approve Glossip’s execution: “Whether the Oklahoma Court of Criminal Appeals’ holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent constitutional basis for judgment.” The court-appointed attorney opposing Glossip (and the state of Oklahoma) dutifully argued in a brief that the justices lacked jurisdiction to consider the due process issues and that the state court did not have to adopt the state’s admission of error.

Next month’s hearing could determine whether a majority of the court will clear this procedural hurdle against Glossip, or whether it will grant the state’s request for a new, constitutionally sound trial.

Notably, unlike Williams’ case — where the three Democratic appointees dissented from denying his stay — the court will be cut in a way that could help the defendant. Justice Neil Gorsuch, who has ruled against death row inmates in divided decisions, has recused himself. The Trump appointee did not explain why, but it is presumably because, as a federal appeals court judge on the circuit court that covers Oklahoma, he sat on (and ruled against) Glossip’s previous cases years ago.

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