The governor doesn't decide whether a court has jurisdiction to act, so the order is a flagrant violation of the rule of law. And the governor is not faced with two conflicting orders. There is a court order preventing the governor from executing the individual. The article states that "the Court of Criminal Appeals twice refused to issue stays," but that's not what happened. It simply refused to exercise jurisdiction to decide the issue, despite the Supreme Court's holding that it had jurisdiction to do so. (The Oklahoma constitution gives the Supreme Court the power to settle disputes over jurisdiction between the two courts.) When the CCA refused to exercise jurisdiction despite the Supreme Court's ruling that it had jurisdiction, the Supreme Court felt constitutionally compelled to do so in order not to deny the right of access to the courts.
It's not as straightforward as you make it appear. It's true that the governor doesn't decide whether a court has jurisdiction to act. In this case, the Supreme Court of Oklahoma has long held that it has no jurisdiction to order a stay of execution. An order from a court without jurisdiction is void, plain and simple. (That's not to say ignoring the order would be prudent. EDIT: In fact, I think the prudent thing for the governor to have done--assuming the governor, herself, has authority to delay the executions--would have been to state that, though the Supreme Court's order is void for lack of jurisdiction, she would use her authority to order the executions delayed until the two high courts resolved their dispute.)
And while it's true that the
Oklahoma Constitution provides that, "in the event there is any conflict as to jurisdiction, the Supreme Court shall determine which court has jurisdiction and such determination shall be final," that provision doesn't permit the Supreme Court to simply confer jurisdiction on the Court of Criminal Appeals where there isn't any to begin with. The Court of Criminal Appeals has jurisdiction to order stays of execution as provided in
Okla. Stat. tit. 22, s. 1001.1, which provides in pertinent part:
Okla. Stat. tit. 22 said:
When an action challenging the conviction or sentence of death is pending before it, the Court of Criminal Appeals may stay an execution date, or issue any order which effectively stays an execution date only upon a showing by the defendant that there exists a significant possibility of reversal of the defendant's conviction, or vacation of the defendant's sentence, and that irreparable harm will result if no stay is issued.
The Court of Criminal Appeals
concluded that it had no jurisdiction to order a stay of execution, because there was no "action challenging the conviction or sentence of death . . . pending before it." Instead, there was merely a civil lawsuit pending before the Supreme Court. Judge Lumpkin, in a special concurrence to the CCA's Order Denying Stays of Execution, pointed out that the convicts could easily invoke the CCA's power to order a stay of execution by filing "an application for post-conviction relief with the Court of Criminal Appeals . . . . [which includes] any challenge to the execution protocol." But the convicts' attorneys refused to do so.
And, when reading about this, people should bear in mind that the convicts aren't alleging that their Eighth Amendment rights against cruel and unusual punishment are being violated. In fact, they withdrew every challenge they had originally made based on the federal Constitution so that the case couldn't be removed to federal court. Their complaint is that their right to access the Oklahoma courts is being violated by the secrecy of the identities of the executioners and the source(s) of the drugs that will be used to execute them. If they prevail on their claim, the remedy won't be to overturn their convictions or sentences; it would be to order that the executions and sources be identified. In other words, their challenge is not one which could directly lead to the sparing of their lives.