Symposium: The Growing Impact of the Supreme Court Shadow Docket on Death Penalty Cases

The U.S. Supreme Court’s ​“shad­ow dock­et” is hav­ing a grow­ing and dis­pro­por­tion­ate impact on the Court’s res­o­lu­tion of con­tro­ver­sial social issues, with some of its most pro­found effects being felt in death penalty cases.

The term, coined in 2015 by law pro­fes­sor William Baude, refers to expe­dit­ed emer­gency rul­ings made by the court with­out full brief­ing and argu­ment, typ­i­cal­ly unsigned and ren­dered with­out an opin­ion explain­ing the Court’s legal rea­son­ing. In a sev­en-arti­cle online sym­po­sium pub­lished by SCOTUSblog from October 22­ – October 28, 2020, legal experts dis­sect the insti­tu­tion­al impli­ca­tions of the recent explo­sion of these deci­sions and dis­cuss their impact on cas­es address­ing nation­al elec­tions, immi­gra­tion, state and local respons­es to the coro­n­avirus pan­dem­ic, and the death penalty. 

In her sym­po­sium arti­cle, The shad­ow dock­et is shap­ing the future of death penal­ty lit­i­ga­tion, DPIC Senior Director of Research and Special Projects Ngozi Ndulue (pic­tured) explores the Court’s series of late-night unsigned deci­sions vacat­ing or deny­ing stays or injunc­tions that would have tem­porar­i­ly halt­ed fed­er­al exe­cu­tions to per­mit low­er courts to review fac­tu­al or legal dis­putes mate­r­i­al to the out­come of the cas­es. The Court’s rul­ings, Ndulue argues, ​“were excep­tion­al and will con­tin­ue to rever­ber­ate in death-penal­ty and non-death-penal­ty cas­es for years to come.”

In the days and hours before the first fed­er­al exe­cu­tions in mid-July 2020, the court issued cur­so­ry unsigned 5 – 4 orders revers­ing sev­er­al dis­trict court injunc­tions that had been left in place by the fed­er­al courts of appeal and deny­ing defense appli­ca­tions for stays of exe­cu­tion to per­mit case-relat­ed appeals to go for­ward. Disregarding tra­di­tion­al appel­late rules of requir­ing evi­den­tiary hear­ings to resolve dis­put­ed issues of mate­r­i­al fact and then defer­ring to fact find­ings of the tri­al court that are sup­port­ed by the record, the Court ruled against the death-row pris­on­er in every case. In dis­sent in Barr v. Lee, Justice Sotomayor wrote:

“The Court hasti­ly dis­pos­es of respon­dents’ Eighth Amendment chal­lenge to the use of pen­to­bar­bi­tal in the Federal Government’s sin­gle-drug exe­cu­tion pro­to­col. In doing so, the Court accepts the Government’s arti­fi­cial claim of urgency to trun­cate ordi­nary pro­ce­dures of judi­cial review. This sets a dan­ger­ous prece­dent. … [B]ecause of the Court’s rush to dis­pose of this lit­i­ga­tion in an emer­gency pos­ture, there will be no mean­ing­ful judi­cial review of the grave, fact-heavy chal­lenges respon­dents bring to the way in which the Government plans to execute them.”

The three-page rul­ing that lift­ed the fed­er­al dis­trict court’s injunc­tion left the low­er court in the dark in inter­pret­ing its mean­ing. That proved crit­i­cal after an autop­sy pro­vid­ed evi­dence that Wesley Purkey had, to a med­ical cer­tain­ty, been con­scious and aware while suf­fer­ing flash pul­monary ede­ma — a sen­sa­tion akin to water­board­ing and suf­fo­ca­tion — dur­ing his execution. 

The new evi­dence con­firmed the dis­trict court’s pre­lim­i­nary fact-find­ing that had been the basis for its ini­tial injunc­tion against the pen­to­bar­bi­tal exe­cu­tions. However, in the wake of the spate of Supreme Court shad­ow dock­et deci­sions allow­ing exe­cu­tions to pro­ceed, the dis­trict court denied a new injunc­tion to Keith Nelson. The dis­trict court wrote, ​“Lee sug­gests that no amount of new evi­dence will suf­fice to prove that the pain pen­to­bar­bi­tal caus­es reach­es uncon­sti­tu­tion­al lev­els.” The appeals court did not adopt this read­ing of Lee, but nev­er­the­less upheld the denial of a new injunction.

“The Supreme Court’s rul­ings on fed­er­al exe­cu­tions show the pow­er and the dan­ger of its shad­ow dock­et,” Ndulue writes. ​“The injunc­tions issued the week of the exe­cu­tions involved impor­tant issues of con­sti­tu­tion­al law, statu­to­ry inter­pre­ta­tion and admin­is­tra­tive law. The Supreme Court over­ruled the con­sid­ered deci­sions of the low­er courts with­out full brief­ing, in the mid­dle of the night and with lit­tle guid­ance to low­er courts for future cas­es. One could take away from this spate of deci­sions that the cur­rent court is unsym­pa­thet­ic to ​‘last-minute lit­i­ga­tion,’ or one can inter­pret the deci­sions – just as the D.C. dis­trict court did — as send­ing sig­nals about the Supreme Court’s gen­er­al out­look on the mer­its of capital claims.”