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August 15, 2023

"The Capital Shadow Docket and The Death of Judicial Restraint"

The title of this post is the title of this new paper on SSRN authored by Jenny-Brooke Condon. Here is its abstract:

The Supreme Court’s recent approach to late-state execution challenges on its otherwise opaque shadow docket illuminates a court comfortable with playing an aggressive, decisive role in America’s system of state killing.  The Court would prefer for us to think of its role differently — as a passive, mere agnostic participant in a process defined by judicial restraint.  The Court promotes this vision when it invokes judicial restraint to justify its refusal to second-guess the cruelty of challenged execution methods or when Justices cite federalism-based rationales for refusing to delay state enforcement of death sentences.  Even the oft-quoted refrain that “death is different” — the notion that the Court proceeds carefully to enforce the Eighth Amendment as applied to capital punishment — advances a narrative of the Court as careful, constrained, and once removed. In this telling, judicial restraint and constitutional regulation of the death penalty go hand in hand.

And yet, on the Supreme Court’s shadow docket, the Court’s death penalty jurisprudence is anything but restrained. For the last several years, the Court has regularly reversed lower court stays in a series of death cases presenting substantial issues.  While decisions addressing death penalty cases on the Court’s emergency orders docket is nothing new, the Court’s willingness to issue momentous, dispositive rulings in death cases through the shadow docket has emerged as an important feature of the Court’s constitutional regulation of the death penalty.  This Article contends that the Court’s capital shadow docket does not merely reflect changes in how the Court now approaches norms surrounding requests for emergency relief, as others have illuminated. The capital shadow docket is also a window into judicial regulation of the death penalty devoid of judicial restraint.

August 15, 2023 at 09:54 PM | Permalink


If the attorneys defending child-rape-murderers and other iterations of the defense bar's version of Mr. Nicey would refrain from a blizzard of last-minute motions, almost all of which could have been filed months or years earlier, we wouldn't have a "shadow docket" at all. When you routinely jam the Court with these concoctions, the outcomes are of your own making.

I would ask the defense bar to quit complaining, but that would be like asking the night to quit being dark.

Posted by: Bill Otis | Aug 15, 2023 11:22:59 PM

There is something very Orwellian about that abstract. The U.S. Supreme Court has made it clear for a very long period of time that last minute stays of execution are disfavored.

I know the practice in my state, and in every other state that I can think of, is that an execution date is not set until the first round of federal habeas is completed. That means that defendant had two years in the trial court to investigate mitigating evidence and file any legal challenges to the death penalty (and, at least in my state, the motions filed are voluminous. They then have at least a year while the direct appeal is pending to begin investigating any ineffective assistance of counsel claims and seven months after the mandate on direct appeal to complete that investigation and file their collateral review motion. Then they have at least two years (one while the collateral review appeal is pending and the one year set forth in the federal habeas statute) to file their federal habeas petition (and most district courts freely allow amended habeas petitions) followed by another two or three years while the federal habeas petition is working its way through the courts. In short, between the end of the first trial and the setting of an execution date is, at least, eight or nine years. It strains credibility that there are any substantial new claims that arise after the setting of the execution date.

The only thing that I have ever seen filed after the setting of an execution that arguable qualifies as a "new" claim that could not have been filed much earlier are claims that the defendant is not competent to be executed. And, in my experience, most "competence to be executed" claims are simply rehashing the mental disease mitigation evidence that was already considered and rejected. Given the mandated 2254 deference to state court rulings, the likelihood that a competent to be executed federal habeas claim is meritorious is exceedingly slim. As such, federal courts should not be granting these stays in the first place. And the U.S. Supreme Court would not have to vacate the stays if the lower courts followed the very clear guidance that has been given on this issue.

Posted by: tmm | Aug 16, 2023 1:21:10 AM

tmm --

Nailed it.

Posted by: Bill Otis | Aug 16, 2023 10:12:55 AM

tmm, exactly.

The real issue is that the Supreme Court is far too solicitous of capital defendants.

Where is Sharon "Killer" Keller when you need her.

Posted by: federalist | Aug 16, 2023 12:56:06 PM

I don't think that the current Supreme Court is too solicitous of capital defendants. But, to give an example of the delay involved, the last federal habeas case that I briefly worked on before returning to a trial office is apparently the next in line for an execution date in my state. The defense has given two "real" reasons why no date should be set.

The first is that they will soon be filing a new state habeas petition. Of course, almost two months has passed since they made this representation and no new state habeas petition has been filed. My expectation is that it will be filed a week or two after my state supreme court sets an execution date and not a minute before. At least from the pleadings, they have some concept of the claims that they are seeking to raise. They could easily file a habeas petition now and, if needed, amend later.

The second is that they are intending to file a cert petition on an issue related to transport to a medical facility for testing related to a commutation application. Over six weeks have passed since they notified the court of that intent. While they have ninety days to file a cert petition, you can be sure that the petition is ready to go and would be quickly filed if an execution date were set.

Posted by: tmm | Aug 16, 2023 2:00:51 PM

It is. First of all, Maples v. Thomas and Buck v Thaler--both reprehensible decisions weren't that long ago. And there have been far far too many stays based on last-minute filings. The Supreme Court is responsible for the flouting of AEDPA.

Posted by: federalist | Aug 17, 2023 11:37:02 AM

This article has nothing to do with “shadow dockets” and “judicial restraint.”

It has everything to do with SCOTUS not deciding in favor of killers and the writer’s preferred policy choices.

Posted by: TarlsQtr | Aug 17, 2023 4:20:48 PM

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