Presidential Commission on the Supreme Court of the United States
“curtailed—whether through a clear Supreme Court precedent directly on point, a federal statute, or an amendment to the Federal Rules of Civil Procedure—at least one of the contributing factors to the recent growth of the shadow docket w[ould] be removed”).
- ↑ In the specific context of “nationwide” injunctions, as relevant to emergency orders, one limitation is that such restrictions would address only a subset of the orders that have been of concern. See Vladeck Testimony, supra note 8, at 11–12 (reporting that cases involving the federal government—and, thus, the potential for a nationwide injunction—account for “only one modest slice of the shadow docket,” and that “even within the DOJ slice, less than half of the Trump administration’s applications for emergency relief involved nationwide injunctions” (emphasis omitted)).
- ↑ Id. at 24.
- ↑ There is a debate over the extent to which litigation commenced as execution dates approach is an example of strategic gamesmanship, versus a more benign outgrowth of the nature of death penalty law and litigation itself. Several Justices clearly view it as the former. See, e.g., Murphy v. Collier, 139 S. Ct. 1475, 1482 (2019) (mem.) (Alito, J., dissenting) (“This Court receives an application to stay virtually every execution; these applications are almost all filed on or shortly before the scheduled execution date; and in the great majority of cases, no good reason for the late filing is apparent.”); Price v. Dunn, 139 S. Ct. 1533, 1538 (2019) (mem.) (Thomas, J., concurring) (“A stay [when] the petitioner inexcusably filed additional evidence hours before his scheduled execution after delaying bringing his challenge in the first place — only encourages the proliferation of dilatory litigation strategies that we have recently and repeatedly sought to discourage.”). On the other hand, Professor Lee Kovarsky observes that litigation in the lead up to an execution is a natural consequence of two other factors. First, the Court’s own doctrine creates a set of “intrinsically delayed claims,” such as challenges to a person’s competency to be executed or to the method of execution, for which “the nature of the constitutional challenge itself thwarts early-phase litigation” because the claims are unripe for adjudication until an execution date is imminent. Lee Kovarsky, Delay in the Shadow of Death, 95 N.Y.U. L. Rev. 1319, 1322–23 (2020) (citing, inter alia, Panetti v. Quarterman, 551 U.S. 930, 946 (2007)); cf. Glossip v. Gross, 576 U.S. 863, 923–24 (2015) (Breyer, J., dissenting) (“[D]elay is in part a problem that the Constitution’s own demands create.”). Second, Kovarsky observes that a lack of resources available to capital defendants forces a small number of lawyers to triage their representation, such that litigation is often “undertaken after the state sets an execution date—because that is the first time that many capital prisoners have the legal representation necessary to enforce certain rights.” Kovarsky, supra, at 1321. See generally Id. at 1356–85.
- ↑ See Adam Liptak, To Beat the Execution Clock, the Justices Prepare Early, N.Y. Times, Sept. 4, 2012, at A19.
- ↑ The clerk who handles all emergency applications at the Court is sometimes referred to as the “death clerk” due to the salience of this category of cases. Id. This category is also procedurally distinctive in that many cases involve habeas corpus, “a thorny and evolving area of the law governed by intricate rules, multi-faceted statutes, and a complex (and still developing) jurisprudence.” Presidential Commission on the Supreme Court of the United States (July 26, 2021) (written testimony of Federal Capital Habeas Project) [hereinafter Federal Capital Habeas Project Testimony], https://www.whitehouse.gov/wp-content/uploads/2021/08/Federal-Capital-Habeas-Project.pdf.
- ↑ See, e.g., Geller & Mahoney testimony, supra note 47, at 28 (“On balance, based on the Supreme Court’s recognition that capital cases are different and on the potential beneficial effects of a heightened standard of review on the process for consideration of applications to vacate a stay of execution, a majority of the Committee [of experienced Supreme Court practitioners] believes that proposals for heightened standards of review for such applications warrant serious consideration.”); Gregg v. Georgia, 428 U.S. 153, 188 (1976) (“[T]he penalty of death is different in kind from any other punishment imposed under our system of criminal justice”); Reid v. Covert, 354 U.S. 1, 45–46 (1957) (on rehearing) (Frankfurter, J., concurring) (“The taking of life is irrevocable. It is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights.”).
- ↑ Cf. Glossip, 576 U.S. at 937 (Breyer, J., dissenting) (“[R]eview by courts at every level helps to ensure reliability; if this Court had not ordered that Anthony Ray Hinton receive further hearings in state court he may well have been executed rather than exonerated.” (citing Hinton v. Alabama, 571 U.S. 263 (2014))).
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