Presidential Commission on the Supreme Court of the United States
problems with automatically allowing a full round of litigation on administration-of-execution challenges, including potential incentives for capital inmates to raise weak claims).
- ↑ See, e.g., Mooppan Testimony, supra note 79, at 3 (“[W]hen a claim is not likely to succeed—especially when it does not even challenge the lawfulness of the sentence or the risk of material harm in how the sentence will be carried out—the execution should not be postponed until the claim is finally rejected due merely to the existence of doubts and questions held by some judges. Postponement for that reason alone would fail to give sufficient weight to the compelling interest of the government and the public in timely executions.”).
- ↑ See Presidential Commission on the Supreme Court of the United States 5:46:40 (June 30, 2021) (oral testimony of Michael Dreeben, O’Melveny & Myers LLP), https://www.whitehouse.gov/pcscotus/public-meetings/june-30-2021 (“I think a much better approach would be that if four Justices vote to hear a case, that there either be a courtesy fifth or just a policy that four in that instance trumps five and that the Court hear the case on the merits. I think that would be more consistent with the traditional rule of four and the underlying purposes that it serves.”).
- ↑ See Freedman, supra note 100, at 650 n.45 (describing proposals separately advanced over the years, most explicitly by Justices Brennan and Marshall).
- ↑ Adam Liptak, A Fitful Commitment to Halting Executions, N.Y. Times, Dec. 13, 2016, at A13.
- ↑ See, e.g., Darden v. Wainwright, 473 U.S. 928, 928–29 (1985) (mem.) (Powell, J., concurring in the granting of the application for a stay) (“I find no merit whatever in any of the claims advanced in the petition for certiorari … . But in view of the unusual situation in which four Justices have voted to grant certiorari … and in view of the fact that this is a capital case with petitioner’s life at stake … I feel obligated to join in granting the application for a stay.”). In practice, however, this norm has been difficult to discern and has not always been applied consistently. See Freedman, supra note 100; Liptak, supra note 109 (describing the courtesy-fifth practice as operating “in fits and starts” and as being “inconsistent”). The Court also often denies stays of execution or vacates lower court stays over four dissents. See, e.g., Dunn v. Ray, 139 S. Ct. 661 (2019) (mem.) (Kagan, J., joined by Ginsburg, Breyer, and Sotomayor, JJ., dissenting); see also Freedman, supra note 100, at 651 n.50 (recounting “dozens of cases … denying stays over four dissents”). Some observers contend that these votes might be consistent with the courtesy-fifth norm if the norm requires the four dissenting Justices to actually vote to grant certiorari, and not merely to vote for a stay to permit more time to consider granting certiorari. See Tom Goldstein, Death Penalty Stays, SCOTUSBlog (Oct. 13, 2007, 12:06 PM), http://www.scotusblog.com/wp/2007/10/death-penalty-stays.
- ↑ As one commentator notes, “the Court has chosen to reveal neither whether it is governed by a rule nor what the contents of that rule might be,” while any potential pattern one might attempt to glean from the Court’s public actions are consistent with “ad hoc negotiations by the Justices on a case-by-case basis.” Freedman, supra note 100, at 651.
- ↑ Medellin v. Texas, 554 U.S. 759, 765–66 (2008) (Breyer, J., dissenting).
- ↑ 139 S. Ct. 1312 (2019) (mem.). In Dunn, Justice Breyer’s request to consider the state’s application the following morning would have carried the execution past its warrant date. As it turns out, the Court’s majority did not vacate the lower court’s stay until after the warrant expired, which resulted in the execution being postponed. See Adam Liptak, Dissent As Court Splits Over Execution¸ N.Y. Times, Apr. 13, 2019, at A1.
- ↑ Id. at 1313–14 (Breyer, J., dissenting). But cf. Price v. Dunn, 139 S. Ct. 1533, 1539 (2019) (mem.) (Thomas, J., concurring in denial of certiorari) (“Insofar as Justice Breyer was serious in suggesting that the Court simply ‘take no action’ on the State’s emergency motion to vacate until the following day, it should be obvious that emergency applications ordinarily cannot be scheduled for discussion at weekly (or sometimes more infrequent) Conferences.”).
- ↑ As Chief Justice Roberts noted in voting for a stay as a “courtesy” when four other Justices had voted for a stay (before deciding on certiorari): “I do not believe that this application meets our ordinary criteria for a stay. This case does not merit the Court’s review: the claims set out in the application are purely fact-specific, dependent on contested interpretations of state law, insulated from our review by alternative holdings below, or some combination of the three. Four Justices have, however, voted to grant a stay. To afford them the opportunity to
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