1. Asymmetric or Automatic Stays of Execution
Several witnesses endorsed the view that the Court should apply an explicitly asymmetrical approach to staying executions,[101] for example, with a presumption in favor of staying an execution when there is genuine doubt as to its legality, or with a heightened standard of review for vacating stays when lower courts have issued them.[102] One witness testified that such an asymmetric approach could be imposed by congressional legislation, either in the form of a statute prescribing asymmetric standards of review or one removing the Court’s jurisdiction to review stays of execution entered by lower courts.[103] We address jurisdiction stripping generally in Chapter 4 of this Report. But absent any action from Congress, the Court can alter its own threshold for staying an execution.
Commission witnesses also proposed variations of an automatic stay of execution during certain stages of litigation. Under one proposal, previously endorsed by Justice Stevens and by a commission led by Justice Powell, “the Supreme Court should be required to automatically grant a stay of execution to any defendant who has not yet completed a first federal habeas review.”[104] In another proposal, every person with a pending execution date would have at least one full opportunity to litigate any challenges to the state’s proposed method or administration of execution.[105] Arguing against these proposals, a Commission witness contended that the availability of automatic stays might induce litigation based on weak claims; that the existing legal standard could account for the irreversibility of an execution; and that any additional delay could undermine the government’s interests in cases where the legal challenge has little chance of success, even if lower court judges view the underlying question as unsettled or unresolved.[106]
2. Four Votes to Stay an Execution
Another approach would be for the Court itself to reduce the number of votes required to grant a stay of execution, from five votes to four—a reform embraced by a number of Commission witnesses,[107] as well as certain Justices in the past.[108] Such a reduction would address a related but distinct set of concerns called to the Commission’s attention regarding what one commentator has termed “a lethal gap” in the Court’s internal processes: “It takes four votes to put a case on the court’s docket” via a writ of certiorari, “but it takes five to stop an execution.”[109] Thus, it is possible that the Court could grant a petition for certiorari and set a case for full briefing and argument to resolve a significant legal question, and yet also allow the petitioner to be put to death while the case is pending. Given this concern, some Justices have at times employed a practice known as the “courtesy fifth,” whereby a Justice who does not believe that either certiorari or a stay is warranted will nonetheless vote to issue a stay if
