Presidential Commission on the Supreme Court of the United States
presence of a religious adviser at the execution. See Swarns Testimony, supra note 78; Bray Testimony, supra note 7; cf. Mooppan Testimony, supra note 79, at 22 n.10.
- ↑ Federal Capital Habeas Project Testimony, supra note 75; Vladeck Testimony, supra note 8; see also Kovarsky, The Trump Executions, supra note 87. The Commission also solicited and received testimony from one witness who defended the Court’s approach to the federal execution cases. See Mooppan Testimony, supra note 79.
- ↑ For detailed (and divergent) accounts of the cases and litigation described in this section, see Kovarsky, The Trump Executions, supra note 87; Federal Capital Habeas Project Testimony, supra note 75; Mooppan Testimony, supra note 79.
- ↑ Federal Capital Habeas Project Testimony, supra note 75, at 5–6 (listing legal challenges raised by federal prisoners that were unanswered by the Supreme Court); Kovarsky, The Trump Executions, supra note 87, at 27–28 (noting Eighth Amendment claims). Notably, these executions were conducted pursuant to a recently adopted execution protocol that was being implemented for the first time in the midst of a pandemic, and they implicated a set of statutes that had not previously been examined closely by the courts.
- ↑ Federal Capital Habeas Project Testimony, supra note 75, at 3 & n.14.
- ↑ Professor Kovarsky summarized these requests as follows: the Court “entertained some twenty-four requests for emergency relief, touching on all of the executions”; and while it “granted no emergency relief to prisoners,” it issued “shadow-docket orders granting emergency relief to the U.S. Solicitor General” multiple times. Kovarsky, The Trump Executions, supra note 87, at 43 & n.322 (citing United States v. Higgs, 141 S. Ct. 645 (2021); Rosen v. Montgomery, 141 S. Ct. 1232 (2021); United States v. Montgomery, 141 S. Ct. 1233 (2021); Barr v. Hall, 141 S. Ct. 869 (2020); Barr v. Purkey, 141 S. Ct. 196 (2020); Barr v. Lee, 140 S. Ct. 2590 (2020)). See also Federal Capital Habeas Project Testimony, supra note 75, n.14 (“In eight of these cases, the government filed emergency applications to vacate the stays, which the Court uniformly granted—and in seven of those eight, the Court provided no explanation at all for its orders.”).
- ↑ See, e.g., United States v. Higgs, 141 S. Ct. 645 (2021) (granting certiorari before judgment and vacating two lower court decisions preventing execution); Barr v. Purkey, 141 S. Ct. 196 (2020) (vacating the lower court’s preliminary injunction without reasoning). As one commentator observes, in the rare instance where the Court did issue a brief per curiam opinion, it appeared to change the underlying Eighth Amendment doctrine. Prior precedent issued in 2019 (via the merits docket) had held that a person challenging a method of execution under the Eighth Amendment must demonstrate that the challenged method would “superadd” pain above and beyond a “feasible and readily implemented alternative method of execution.” Buckley v. Precythe, 139 S. Ct. 1112, 1125 (2019). In contrast to that comparative analysis, the Court’s per curiam opinion in the federal execution case of Barr v. Lee, 140 S. Ct. 2590 (2020), “appeared to ground its vacatur [of the lower court’s stay] in the idea that pentobarbital-only executions [a]re unconditionally consistent with the Eighth Amendment,” even when compared to a proposed less painful alternative that had not previously been analyzed by the Court. Kovarsky, The Trump Executions, supra note 87, at 24 (emphasis added).
- ↑ Ten of the orders, out of 25, were issued over dissents. Mooppan Testimony, supra note 79, at 11. Also, in several cases, the Court vacated lower court stays even though the courts of appeals had set expedited briefing schedules to resolve the cases promptly. See, e.g., Rosen v. Montgomery, 141 S. Ct. 1232 (2021) (mem.) (vacating D.C. Circuit’s stay of execution pending highly expedited en banc consideration of FDPA statutory question); Barr v. Lee, 140 S. Ct. 2590 (2020) (per curiam) (vacating similarly expedited D.C. Circuit consideration of Eighth Amendment challenge to federal execution protocol).
- ↑ See generally Mooppan Testimony, supra note 79, at 1–16; see also Id. at 12 (defending “the orders where the criticism of the Court would seem to be most relevant, because a divided Court used emergency rulings to” summarily vacate lower court says, on the ground that “the dissenting Justices did not assert that the inmate’s claim was likely to succeed”).
- ↑ See Vladeck Testimony, supra note 8; Federal Capital Habeas Project Testimony, supra note 75; Presidential Commission on the Supreme Court of the United States 16 (Sept. 1, 2021) (written testimony of Janai S. Nelson, NAACP Legal Defense Fund), https://www.whitehouse.gov/wp-content/uploads/2021/09/NAACP-LDF.pdf (“In
236 | December 2021
