10. Tinkering With the Machinery of Death
With a new presumption against eleventh-hour challenges, the Supreme Court is regularly clearing the way for executions to proceed even while colorable objections remain unresolved.
Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.
Every Monday, including holidays like today, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it (and subscribing if you don’t already):
On the Docket
The first week of the January argument session was relatively lacking for big headlines. The Court denied a trio of emergency applications brought by a Texas death-row inmate unsuccessfully seeking to block his execution. And it turned away an emergency application seeking to put back on hold most of New York’s new restrictions on the concealed carry of firearms, although Justice Alito filed a brief statement (joined by Justice Thomas) expressing sympathy for the applicant’s claims and frustration that the Second Circuit hadn’t explained why it stayed the district court’s injunction—notwithstanding the Court’s increasing willingness in recent years to issue its own unexplained stays of lower-court injunctions.
The Court also appeared to fill out its argument calendar for the October 2022 Term on Friday, granting certiorari in eight sets of new cases. (It’s not uncommon for the Court to grant a flurry of cases in early January; the way the timing of merits briefs works, that’s the last opportunity to take up cases that can be argued in April without expediting them.) Some of the grants have broader significance (we’ll talk more about them in a future issue), but it’s safe to say that none likely rank alongside the most publicly visible and important cases already on the docket for this Term.
All the while, the Justices didn’t hand down any opinions for the full Court last week, and appears not to be planning to hand down any this week, either. That continues the Justices’ record streak for how long into a Term they’ve gone without even one such decision. Chances are we’ll get one (or more) soon (there’s a “non-argument session” on the calendar for next Monday), but it’s more than a little odd that it’s January 16 and the “Opinions of the Court” page is still empty.
Finally, the Wall Street Journal reported on Friday that “investigators probing the May leak of Justice Samuel Alito’s draft opinion overruling Roe v. Wade have narrowed their inquiry to a small number of suspects including law clerks, but officials have yet to conclusively identify the alleged culprit.” I’m not sure what to make of this story, but it’s the first public reporting on the progress of the Dobbs leak investigation in months. I’m still skeptical that this is going to end up culminating in a big public spectacle, but perhaps this new report is a sign that matters are coming to a head. Stay tuned, I guess?
The One First Long Read: The Death Penalty and the Court
For over 50 years, the Supreme Court has had a complicated (and centrally important) relationship with capital punishment in the United States. Until the late 1960s, the Justices had largely stayed out of the fraught legal and constitutional questions surrounding the death penalty (as one data point, between 1937 and 1967, the Court issued only two merits decisions addressing the constitutionality of a death sentence or execution). But in Furman v. Georgia in 1972, the Court famously imposed what was effectively a nationwide moratorium on the practice.
Part of the analysis focused on the arbitrary nature in which the death penalty was being imposed in those jurisdictions that authorized it; part of it reflected more categorical opposition to capital punishment; and part of it focused more specifically on the alarming racial disparities in some states when it came to the defendants who were (and weren’t) being charged and convicted of capital offenses (yet another reason to focus on this topic on what would have been MLK’s 94th birthday). But the five Justices in the majority in Furman could not agree on a single rationale. And four years later, on July 2, 1976, two of those five (Justices Stewart and White) joined the Furman dissenters in upholding the post-Furman revisions to the death penalty adopted by Florida, Georgia, and Texas.
The “July 2 Cases,” as Columbia law professor Jim Liebman has dubbed them, did not just lift the death penalty moratorium; they also guaranteed that the Supreme Court would have to play a much more active and direct role in supervision of the death penalty—to enforce all of the new constitutional requirements for capital punishment that the post-Furman landscape had precipitated. In other words, as law professors (and siblings) Carol and Jordan Steiker show in their powerful 2016 book, Courting Death, the post-1976 death penalty was far more judicialized compared to its predecessor—where questions about how the death penalty was imposed by the trial court and how it was to be carried out by the state predominated over questions about capital punishment as such. Thus, as Liebman notes, the Court would hand down at least 209 opinions between 1972 and 2006 addressing some feature of capital punishment. And as the composition of the Court shifted ever more toward Justices who support (or, at least, defend) capital punishment, the result was a jurisprudence that increasingly enabled the proliferation of capital punishment in those states that chose to pursue it.
But the other part of the post-1976 story, which I tell in far more detail in Chapter 3 of my forthcoming book on “The Shadow Docket,” is how the post-1976 judicialized death penalty brought with it an explosion in applications for emergency relief. Even though the Court had the power to hear direct appeals in capital cases raising federal constitutional claims (and post-conviction challenges raising the same), many of the legal questions that death sentences and/or executions now raised only became “ripe,” whether formally or practically, once the state set an execution date. And many states set those dates aggressively (including while post-conviction litigation was still ongoing), which put ever more pressure on courts, especially federal courts, to “stay” those executions until and unless the prisoner’s late-arising appeals could be resolved.
Thus, emergency applications from death-row inmates seeking to stay their executions became a common feature of many—if not most—scheduled executions across the country after 1976. No doubt, some of that also reflected strategic behavior by defense lawyers doing whatever they could to prolong their clients’ lives. But much of it was also compelled by the Court’s own jurisprudence in such cases, which tied more and more execution-related claims to the execution itself.
And the Court reacted to that explosion with some subtle but significant procedural shifts of its own. First, in 1980, the Court stopped formally adjourning when it rose for its summer recess—so that the full Court could act over the summer without having to be re-convened in a “Special Term.” (This change wouldn’t be memorialized in the Court’s rules until 1990.)
Second, and related, the Justices also radically increased the number of emergency applications that were referred to the full Court for decision, rather than being decided by individual Circuit Justices “in chambers.” Whereas the norm up until the late 1970s had been for applications to be resolved in chambers whenever possible (including, in many cases, after the Circuit Justice held in-chambers oral argument), the practice of referring all potentially divisive emergency applications to the full Court was a direct response to the uptick in emergency applications in death cases. (With it, the practice of in-chambers arguments also died out; there hasn’t been one since 1980; and there are far fewer in-chambers opinions these days, as well.). Thus, in its October 1960 Term, to take one example, the full Court considered only four of the 29 applications for emergency relief relating to impending executions; the other 25 were handled in chambers. As Linda Greenhouse noted in Becoming Justice Blackmun, in its October 1983 Term, in contrast, the full Court alone considered 83 such applications—one every 4.4 days.
Third, in trying to stem the tide of these applications, the Court in Barefoot v. Estelle in 1983 encouraged lower courts to do more to expedite their review of end-stage challenges to executions in lieu of issuing stays. Barefoot thus opened the door not only to truncated review in the lower courts, but, unintentionally, to a flurry of emergency applications from states, arguing that lower-court stays of executions should be vacated for failing to follow the Court’s guidance. Through the end of the 1970s, the Justices would routinely deny requests to vacate a stay of execution imposed by a lower court, reflecting the then-prevailing view that such relief was justified only in truly extraordinary circumstances. After all, so long as a prisoner’s claims were not frivolous, there was little support—at least at that time—for the argument that a stay of execution irreparably harmed the state, especially in contrast to the irreparable harm of prematurely allowing a potentially unlawful execution to go forward.
But after Barefoot, the number of orders granting emergency relief to states by vacating lower-court stays or injunctions increased significantly (often, if not usually, without any explanation for why the lower court had erred in pausing an execution). And instead of focusing on whether the prisoner raised substantial challenges to his conviction or sentence, the Court’s analysis respecting emergency applications shifted toward the likelihood that the Justices would vote to take up the prisoner’s case on the merits.
That shift, too, created awkwardness, since it takes only four votes to grant certiorari, but five to stay an execution. Justice Powell closed the gap by inaugurating the practice of the “courtesy fifth,” in which he would vote for a stay in cases in which four other Justices had voted to grant certiorari—to avoid the troubling specter of a state executing a prisoner after the Court had agreed to hear his case. But that norm was never formalized, and it has, to outward appearances, all-but disappeared since Justice Kennedy’s 2018 retirement.
This technical point is one of immense real-world significance. By tying the availability of a courtesy fifth to the likelihood of a cert. grant, the Justices tied the propriety of staying an execution not to the likelihood that the applicant’s claims were valid, let alone that they were “substantial.” Rather, a stay would be granted if the Supreme Court was likely to exercise its discretion to resolve the applicant’s claims on the merits—discretion that, as we’ve seen, the Justices are under no obligation to exercise, and that different Justices might choose to exercise differently. The Court thus abandoned its explicit commitment to staying executions in any case in which a prisoner raised a “substantial showing of the denial of [a] federal right,” and replaced it with an unspoken commitment to stay an execution if and only if a majority was willing to grant discretionary review via certiorari, a far higher—and, as we’ve seen, far more subjective—bar.
That shift was largely responsible for the state of the Court’s death penalty jurisprudence for much of the next 30 years. Congress made post-conviction relief for death-row inmates (and all other prisoners) even more difficult in the Antiterrorism or Effective Death Penalty Act of 1996. But even though AEDPA further narrowed the number of cases in which there would be four votes for granting certiorari (by preventing federal courts considering post-conviction challenges to state court convictions from granting relief unless the state court didn’t just err, but erred unreasonably), it didn’t fundamentally change how the Court considered whether to stay executions in such cases.1
Instead, the most recent shift in the Court’s approach to emergency applications in capital cases post-dates Justice Kennedy’s retirement in 2018. In its 2019 decision in Bucklew v. Precythe, the 5-4 majority went out of its way, after deciding the merits of the dispute (holding that a death-row prisoner with an Eighth Amendment challenge to his method of execution must identify an alternative method that can be “readily implemented”), to also take a shot at end-stage challenges to executions: “Last-minute stays should be the extreme exception, not the norm,” Justice Gorsuch wrote for the Court. And the mere fact that a death-row inmate brought a claim close to his execution date that could “theoretically” have been brought earlier (whether or not it would have been viable at that earlier date) “may be grounds for denial of a stay” itself, entirely without regard to the claim’s merit or the balancing of the equities that is otherwise suppose to accompany the Court’s consideration of such an emergency application.
In other words, the new majority’s mindset was one in which end-stage challenges were presumptively disfavored without any regard to the underlying substance of the prisoner’s claims or the extent to which the Court’s own jurisprudence frustrated meaningful consideration of those claims at an earlier stage. As recently as 2018, as Professor Lee Kovarsky has concluded, there were no cases in which “an execution [was] permitted to proceed in the absence of some final judicial order denying relief on the merits.” But as Bucklew memorialized, “Starting in early 2019, . . . the Court started to experiment with more aggressive shadow-docket practices in capital cases, expressing frustration with what it believed to be the end-stage gamesmanship of death-sentenced prisoners.” The critical move that Bucklew endorsed was allowing executions to go forward before such a final judicial order denying relief on the merits—which now, would never come.
Although all four of the more liberal Justices dissented in Bucklew, Justice Sotomayor’s critique was perhaps the harshest: “There are higher values than ensuring that executions run on time,” she wrote. “If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.” (One might also point out that, for Justices who are convinced that all—or even most—end-stage capital litigation is gamesmanship and/or risks irreparable harm to the state’s and victims’ interests in finality, another response would be to make it easier for those claims to reach the Court before the eleventh hour rather than just throwing up one’s hands.)
That the Court’s approach to end-stage death penalty litigation has turned to a “jurisprudence . . . of dismissiveness” was driven home in July 2020, when a 5-4 majority, shortly after 2:00 a.m. EDT, cleared the way for the first federal execution in 17 years. The brief, unsigned opinion in Barr v. Lee justified the vacatur of a lower-court injunction on the ground that the relevant experts disagreed over the likelihood that the government’s proposed single-drug execution method would inflict serious pain on the prisoners before they lost consciousness. Critically, the majority didn’t side with the government’s experts; it just noted that there was a dispute. As the “per curiam” opinion concluded, “It is our responsibility to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously, so that the question of capital punishment can remain with the people and their representatives, not the courts, to resolve.”
Since that ruling in July 2020, the Court has intervened to block exactly one execution (in Ramirez v. Collier), whereas it has granted emergency relief to un-block executions or otherwise clear the way for death sentences on nine occasions,2 including the unsigned, unexplained order last November in Hamm v. Smith—after both the district court and the Eleventh Circuit had issued lengthy analyses of why an Alabama death-row inmate’s execution should be blocked (analyses that were largely vindicated by subsequent events). And as we saw last week, there have been countless other unsigned, unexplained orders in which the Court has denied emergency requests from death-row inmates, including 14 so far this Term alone. All the while, the Court is leaving unanswered and unresolved any number of substantive and procedural questions about the administration of the death penalty both in general and in specific cases, as Justice Breyer highlighted in a January 2021 dissent.
Shortly before he retired from the bench in 1994, Justice Harry Blackmun wrote in Callins v. Collins that he “no longer shall tinker with the machinery of death.” For Blackmun, his was a promise to dissent, in perpetuity, from any future order that facilitated an execution, because he had become convinced that there was no available means of ensuring that capital punishment could be imposed and administered constitutionally. But the current Court’s jurisprudence might also reflect the same sentiment, albeit in the opposite direction: In almost every case, the Court will no longer tinker with the machinery of death (or allow lower courts to tinker with the machinery of death) by pausing it.
SCOTUS Trivia: Death on the Court
Like the long read, this week’s (very loosely related) trivia is more than a little morbid. Given the recent examples of sitting Justices Antonin Scalia and Ruth Bader Ginsburg, we’ve likely become accustomed to the idea that a number of Justices’ tenures end with their deaths.
In fact, of the 112 Supreme Court tenures that have ended (including the five individuals to hold two offices on the Court, John Rutledge; Edward Douglass White; Charles Evans Hughes; Harlan Fiske Stone; and William H. Rehnquist), 51 (45.5%) ended with the individual’s death; and 61 (54.5%) ended via resignation and/or retirement (including 3 promotions to Chief Justice—White, Stone, and Rehnquist). And of the first 16 Chief Justices, 9 died in office and 7 resigned or retired.
But for a large swath of the Court’s recent history, death was not the norm. Before Chief Justice Rehnquist passed away in September 2005, the Court had gone 51 years without a vacancy created by death; Rehnquist’s former boss, Justice Robert Jackson, had been the last Justice to die while still in active service (on October 9, 1954).
Between Jackson in 1954 and Rehnquist in 2005, 20 consecutive Justices voluntarily gave up their seats on the bench (21, if we include Justice Sandra Day O’Connor, who had announced her intent to retire prior to Rehnquist’s death). In retrospect, the resignation-heavy period between 1954 and 2005 may therefore have been an aberration. But, for everyone’s sake, perhaps it was a good one.
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Happy Monday, everyone! I hope you have a great week.
I don’t mean to downplay the massive substantive shifts in the Court’s death penalty jurisprudence during this same time period, of which there were many, a majority of which tended to go against prisoners. But my focus in today’s issue is on how the Court handled emergency applications in capital cases, specifically.
One of the most jarring examples was in United States v. Higgs, in which the Court not only lifted a lower-court stay of an execution, but granted certiorari “before judgment” and summarily sided with the federal government on a legal question that had befuddled just about everyone. The cryptic order didn’t explain why the Court felt the need to move so quickly; the only real clue appeared to be its timing: it came down on January 15, 2021—five days before the inauguration of President Biden, a noted opponent of the death penalty.
This is incredible insight. Thank you!
Thank you for this Steve. The court's recent death penalty jurisprudence has caused us all to lose confidence in the law.