Presidential Commission on the Supreme Court of the United States
eight orders supported by little to no reasoning, the Court lifted lower court stays of federal executions, denying the inmates a fair opportunity to present evidence for their claims.”).
- ↑ In United States v. Higgs, the final case to reach the Court during the Trump administration, Justice Sotomayor argued in dissent that:This unprecedented rush of federal executions has predictably given rise to many difficult legal disputes. … Throughout this expedited spree of executions, this Court has consistently rejected inmates’ credible claims for relief. The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing. The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale. This is not justice.Higgs, 141 S. Ct. at 647 (Sotomayor, J., dissenting). Justice Breyer was similarly critical: “None of these legal questions is frivolous. What are courts to do when faced with legal questions of this kind? Are they simply to ignore them? Or are they, as in this case, to ‘hurry up, hurry up’? That is no solution.” Id. at 646 (Breyer, J., dissenting).
- ↑ Id. at 647 (Sotomayor, J., dissenting).
- ↑ See, e.g., Bray Testimony, supra note 7, at 16. Professor Bray’s point echoed others, most notably Mr. Amir Ali, who told Congress earlier this year that “When it comes to ending someone’s life, there is no do-over. And when the matter before the Court is one of life or death, the public’s interest in transparency and the need to ensure public confidence in our legal system are at their apex.” The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on the Courts, Intellectual Prop. & the Internet of the H. Comm. on the Judiciary, 117th Cong. 1 (2021) (statement of Amir H. Ali, Roderick & Solange MacArthur Justice Center) [hereinafter Ali House Testimony], https://docs.house.gov/meetings/JU/JU03/20210218/111204/HHRG-117-JU03-Wstate-AliA-20210218-U2.pdf; see also Swarns Testimony, supra note 78; cf. Eric M. Freedman, No Execution If Four Justices Object, 43 Hofstra L. Rev. 639, 652–54 (2015) (arguing that executions should be stayed whenever necessary to afford the Justices “time to think” about whether to grant certiorari in a case).
- ↑ See Bray Testimony, supra note 7, at 16–17; Swarns Testimony, supra note 78, at 5–6; see also Ali House Testimony, supra note 100, at 5–6.
- ↑ See Swarns Testimony, supra note 78, at 5–6. See also Geller & Mahoney testimony, supra note 47, at 28 (noting that among a committee of experienced Supreme Court practitioners, “a majority of the Committee believes that proposals for heightened standards of review for such applications warrant serious consideration,” although a “significant number of members of the Committee oppose the proposal”).
- ↑ See Presidential Commission on the Supreme Court of the United States 5:42:00 (June 30, 2021) (oral testimony of Stephen Vladeck, University of Texas Law School) [hereinafter Vladeck Oral Testimony], https://www.whitehouse.gov/pcscotus/public-meetings/june-30-2021 (describing an asymmetrical, statutorily imposed standard of review as “clearly constitutional”); see also Ali House Testimony, supra note 100, at 5–6 (proposing a statutory approach).
- ↑ Swarns Testimony, supra note 78, at 6. See also Id. at 7 (“While it may be unlikely for an execution to proceed while a first-time habeas petition pends, the assurance of an automatic stay is nevertheless called for given the gravity of what is at stake.”). Ms. Swarns agreed with Justice Stevens that “granting an automatic stay of execution pending the completion of a full round of federal habeas review is consistent with the goals of the Antiterrorism and Effective Death Penalty Act and would improve the balance between finality and justice in the Court’s review of capital cases.” Id. See also Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, Report on Habeas Corpus in Capital Cases, reprinted in 45 Crim. L. Rep. 3239 (1989); Emmett v. Kelly, 552 U.S. 942, 943 (2007) (statement of Stevens, J., joined by Ginsburg, J., respecting denial of certiorari).
- ↑ See Vladeck Oral Testimony, supra note 103, at 5:44:22 (proposing a statutory bar on carrying out an execution during the course of such a legal challenge to the method of execution, as well as arguing for mandatory review at the Supreme Court of such a challenge). But see Mooppan Testimony, supra note 79, at 23 (noting practical
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