Discussions with DPIC Podcast: Professor Steve Vladeck on the Supreme Court’s Death Penalty Shift

In this month’s episode of Discussions with DPIC, Executive Director Robin Maher speaks with Steve Vladeck, a Georgetown law pro­fes­sor and expert on the Supreme Court. Professor Vladeck is the author of The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, released in 2023, as well as the week­ly newslet­ter One First, which breaks down the Court’s rul­ings and his­to­ry. Professor Vladeck explains why the Court’s treat­ment of death penal­ty cas­es has recent­ly changed, the role the Court played in cre­at­ing many of the prob­lems with death penal­ty cas­es it now com­plains about, and how the death penal­ty shaped the Court’s new ori­en­ta­tion and approach to oth­er areas of law.

Professor Vladeck iden­ti­fies Gregg v. Georgia (1976), in which the Supreme Court autho­rized the return of the death penal­ty by approv­ing new cap­i­tal statutes, as a cat­a­lyst for ​“mas­sive changes” in the Court’s behav­ior. He explains that Gregg set many new rules around cap­i­tal pun­ish­ment that had to be lit­i­gat­ed, prompt­ing a flow of appeals from pris­on­ers fac­ing exe­cu­tion. While for many years the jus­tices appeared open to these appeals and took the con­sti­tu­tion­al claims raised in them seri­ous­ly, Professor Vladeck argues that since the depar­ture of Justice Anthony Kennedy in 2018, the Court shift­ed ​“almost overnight” to dis­fa­vor review­ing the appeals of death-sen­tenced pris­on­ers. ​“This is a Court that is just done for the most part…with emer­gency inter­ven­tions in cap­i­tal cas­es, and even real­ly for the most part, with any spe­cial con­sti­tu­tion­al con­straints on cap­i­tal cas­es,” he says. 

Professor Vladeck notes that the Court’s rul­ings since 2018 have essen­tial­ly cre­at­ed a ​“pre­sump­tion against emer­gency relief in cap­i­tal cas­es,” mak­ing it near­ly impos­si­ble for death-sen­tenced pris­on­ers to obtain a stay of exe­cu­tion even with sig­nif­i­cant con­sti­tu­tion­al con­cerns. In his view, that pre­sump­tion ​“makes no sense because it is based on the idea that it’s always the prisoner’s fault,” which is ​“just not fac­tu­al­ly true.” The Court was respon­si­ble for ​“cre­at­ing those claims, and…creating a series of pro­ce­dur­al rules that actu­al­ly made it hard­er to bring those claims, except in those trun­cat­ed, often 11^th hour con­texts,” he explains. ​“I under­stand why the Court was tired of these cas­es, but the rea­son why it was hit with so many of them was its fault.” 

The increase in appeals fol­low­ing Gregg also meant that the Court increas­ing­ly relied on the ​“shad­ow dock­et,” so-called for the way it resolves cas­es through unsigned orders with­out oral argu­ment. The Court rejects hun­dreds of peti­tions from death-sen­tenced pris­on­ers each year and has resolved numer­ous cap­i­tal cas­es through sum­ma­ry orders on the shad­ow dock­et. Professor Vladeck argues that the Court’s use of the shad­ow dock­et in death penal­ty cas­es laid the ground­work for its ​“rad­i­cal and prob­lem­at­ic” expan­sion to cas­es in oth­er legal areas. In recent years, the Court has issued unsigned, unex­plained orders on issues such as immi­gra­tion, the COVID-19 pan­dem­ic, elec­tions, and repro­duc­tive rights — caus­ing major polit­i­cal changes that often hap­pen to align with con­ser­v­a­tive pol­i­cy pref­er­ences. ​“The more the Court is inter­ven­ing in ways that are pro­duc­ing sig­nif­i­cant con­se­quences on the ground and in ways that are hav­ing prece­den­tial effects, the more that the fact that the jus­tices are not explain­ing them­selves opens the Court up to charges that these are just exer­cis­es of polit­i­cal pow­er and not judi­cial pow­er, and that the jus­tices are vot­ing on their pref­er­ences and not their prin­ci­ples,” says Professor Vladeck. 

To learn more, lis­ten to the lat­est episode of Discussions with DPIC, avail­able on all podcast platforms.