A recent law review article criticizes the U.S. Supreme Court’s use of its ‘shadow docket’ in capital cases, particularly in recent years. The Capital Shadow Docket and the Death of Judicial Restraint, by Professor Jenny-Brooke Condon, explains that the Court “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 a death sentences … And yet on the Supreme Court’s shadow docket, the Court’s death penalty jurisprudence is anything but restrained.”  

The Supreme Court’s “shadow docket” refers to motions and orders by the Court in cases which have not yet reached a final judgement, decision on appeal, and oral argument in the Court. As applied to death penalty cases, this includes the Court’s consideration of a request by a prisoner for a stay of execution, or a request by the government to vacate a lower court’s stay or injunction so an execution can proceed. Prof. Condon writes that “[w]hile 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.”  

The article describes judicial restraint as a type of judicial philosophy “that judges should respect their limited role, the will of the people, and the respective powers of coordinate branches … [judicial restraint] ‘properly understood’ does not have a political valence.” Prof. Condon discusses how interpretations of what judicial restraint means can “reflect a spectrum of ideological views,” citing non-capital cases that illustrate “the vagaries of judicial restraint given the multiple ways the Justices [invoke] the principle in support of divergent rationales and outcomes.” Historically, however, judges have relied on the refrain “death is different,” to justify “meaningful constitutional regulation” of the death penalty under the Eighth Amendment, while still comporting with theories of judicial restraint. 

Prof. Condon argues that the Court’s shadow docket decisions on whether to lift injunctions put in place by a lower court, in particular, demonstrate a lack of judicial restraint and “[clear] the way for state killing without full briefing, oral argument, and written decisions explaining the Justices’ rationales in matters of life and death,” and that the result is, in part, that lower courts “read middle-of-the-night shadow docket decisions as substantive judgements about merits issues affecting death penalty challenges, rather than as decisions enforcing norms related to stay requests.”  

Prof. Condon cites 2018 as a turning point on the Court’s shadow docket, when “the Court denied or vacated stays in summary fashion” in two cases “without explicating the nature or basis for the shift.” She notes that the Court only made brief statements about the defendants’ timing, creating a “hyperfocus on delay and [the] presumption that death penalty lawyers and their clients engage in improper litigation tactics.” She also argues that “[t]he [Court’s] willingness to proceed … in secrecy and the rejection of the possibility for further discussion adds to the picture of an emboldened Supreme Court undeterred by the norms of cautiousness and public accountability.” 

Prof. Condon also discusses the 2020 federal executions and the claim raised by several of the prisoners about the government’s execution method, which was dismissed in a per curiam opinion. She argues “that the Court cleared the path for executions without requiring resolution on the merits of the claims presented. … The lower courts wanted time to address and evaluate the issue, but the Supreme Court cut off that process before it began, effectively accepting the government’s claim without testing.” 

Prof. Condon concludes that “If the long-existing approach to capital stay requests on the Supreme Court’s orders docket is a version of judicial minimalism—that is, a preference for proceeding cautiously, deference to decisionmakers with the better opportunity to develop the record, and only deciding cases on the narrowest possible grounds—then the Court’s willingness to dispense with those standards in matters bearing upon life or death should be recognized as a form of judicial maximalism.” She cautions that this maximalism could mean that “in the few remaining states where the death penalty operates, the Court will largely endorse and facilitate executions with little worry about the legality of the sentences and execution methods coming before the Court.” 


Condon, Jenny-Brooke, The Capital Shadow Docket and The Death of Judicial Restraint (August 10, 2023). The Shadow Docket: A Symposium; Seton Hall Law School Legal Studies Research No. Forthcoming, Nevada Law Journal, Vol. 23, 2023, Available at SSRN: https://​ssrn​.com/​a​b​s​t​r​a​c​t​=​4537850