As the October 2026 Term begins, it's worth taking a moment to highlight the *real* final statistics for the Court’s output during the October 2025 Term.
"Curiously, the Court did not follow the government’s advice about which case to use to decide that question—and so took up just the statutory question (whether the administration’s novel interpretation is correct), and not the constitutional question (whether denying bond hearings violates due process). My own view is that this move on the Court’s part can be read in two very different directions. On one hand, a Court that knows it’s ruling against the government on the statute doesn’t need to spend any time on the due process question. On the other, this also allows the Court to resolve the statutory question in the government’s favor without having to immediately decide the massive constitutional question that would follow."
I'm wondering how many times this Court has chosen to go the statutory route, instead of ruling on the underlying and fundamental
Constitutional questions. If that's the case, it seems... not very brave, when the Trump administration's behavior has often raised some fundamental Constitutional questions.
I think the death penalty statistics are exactly what Congress intended when it passed AEDPA. The last second stay was always an unjustified part of death penalty litigation-- these were cases that already went through state direct appeal, state habeas, and federal habeas, but capital defense lawyers tend to have a "there's no such thing as a frivolous argument" ethic and filed cert petitions and successive habeas petitions and stay applications that had no chance of ultimate success, because they are trying to delay the execution.
A major part of AEDPA was channeling everything into first federal habeas, which means the vast majority of last second stay applications have been prohibited by Congress. Pike had a semi-clever workaround but whatever you think of that argument, most last minute stay applications don't have it and are somewhere between sure losers and legally frivolous.
So it shouldn't surprise anyone that nobody's getting last minute stays. Capital defense lawyers eventually are going to need to adjust to the new reality and get everything worth raising into the first federal habeas petition. Because under AEDPA, almost nothing can be raised later.
"Curiously, the Court did not follow the government’s advice about which case to use to decide that question—and so took up just the statutory question (whether the administration’s novel interpretation is correct), and not the constitutional question (whether denying bond hearings violates due process). My own view is that this move on the Court’s part can be read in two very different directions. On one hand, a Court that knows it’s ruling against the government on the statute doesn’t need to spend any time on the due process question. On the other, this also allows the Court to resolve the statutory question in the government’s favor without having to immediately decide the massive constitutional question that would follow."
I'm wondering how many times this Court has chosen to go the statutory route, instead of ruling on the underlying and fundamental
Constitutional questions. If that's the case, it seems... not very brave, when the Trump administration's behavior has often raised some fundamental Constitutional questions.
I think the death penalty statistics are exactly what Congress intended when it passed AEDPA. The last second stay was always an unjustified part of death penalty litigation-- these were cases that already went through state direct appeal, state habeas, and federal habeas, but capital defense lawyers tend to have a "there's no such thing as a frivolous argument" ethic and filed cert petitions and successive habeas petitions and stay applications that had no chance of ultimate success, because they are trying to delay the execution.
A major part of AEDPA was channeling everything into first federal habeas, which means the vast majority of last second stay applications have been prohibited by Congress. Pike had a semi-clever workaround but whatever you think of that argument, most last minute stay applications don't have it and are somewhere between sure losers and legally frivolous.
So it shouldn't surprise anyone that nobody's getting last minute stays. Capital defense lawyers eventually are going to need to adjust to the new reality and get everything worth raising into the first federal habeas petition. Because under AEDPA, almost nothing can be raised later.
The author of the "Shadow Docket" has a section on the "Emergency Docket."
This underlines that there is one large 'shadow" and a smaller "emergency."