Presidential Commission Hears Recommendations for Reforms to Supreme Court’s Death-Penalty Practices

Legal reform advo­cates and a com­mit­tee of high-pro­file Supreme Court prac­ti­tion­ers have urged the Presidential Commission on the Supreme Court of the United States to rec­om­mend changes in the way the Court han­dles emer­gency appli­ca­tions for stays of exe­cu­tions in death-penalty cases.

In tes­ti­mo­ny in pub­lic hear­ings before the Commission in June and July 2021, Innocence Project Executive Director Christina Swarns, who argued the Texas death-penal­ty case Buck v. Davis before the Court, and the self-described Supreme Court Practitioners’ Committee, both argued for a stricter stan­dard of review before the Court may vacate a stay of exe­cu­tion grant­ed by a low­er court. Noting that “[t]here is no area of law in which reli­a­bil­i­ty, accu­ra­cy, and fair­ness are more crit­i­cal than cap­i­tal pun­ish­ment,” Swarns also advo­cat­ed that the Court revise its prac­tices to per­mit a stay of exe­cu­tion based on the votes of four jus­tices — the same num­ber of votes required for the Court to agree to review the mer­its of a case. ​“People under sen­tence of death should not be denied a mer­its hear­ing in the Supreme Court on the grounds that they will be exe­cut­ed before the Court can hear the case,” she testified.

In addi­tion, Swarns urged that to pro­tect mean­ing­ful access to fed­er­al court review of cap­i­tal habeas cor­pus cas­es, “[t]he Supreme Court should be required to auto­mat­i­cal­ly stay an exe­cu­tion to per­mit a full review of first-time habeas peti­tions.” In January 2017, the U.S. Supreme Court denied a stay of exe­cu­tion to Mark Christeson, allow­ing Missouri to exe­cute him with­out afford­ing him any fed­er­al court review of his case.

The prac­ti­tion­ers’ com­mit­tee gen­er­al­ly opposed any changes to the Court’s han­dling of emer­gency peti­tions, assert­ing that ​“the Court’s exist­ing stan­dards already build in def­er­ence to low­er court rul­ings when par­ties apply for a stay or injunc­tive relief.” It also urged that any changes in prac­tice should be adopt­ed by the Court itself, rather than leg­is­lat­ed by Congress. However, ​“based on the Supreme Court’s recog­ni­tion that cap­i­tal cas­es are dif­fer­ent and on the poten­tial ben­e­fi­cial effects of a height­ened stan­dard of review,” a major­i­ty of mem­bers of the com­mit­tee agreed ​“that pro­pos­als for height­ened stan­dards of review for … appli­ca­tions [to vacate stays of exe­cu­tion] war­rant serious consideration.”

The Commission hear­ings come in the wake of an explo­sion of cas­es decid­ed through the Court’s shad­ow dock­et and an his­toric exe­cu­tion spree in the last six months of the Trump admin­is­tra­tion in which the Court denied or vacat­ed every court order that would have delayed the exe­cu­tions of 13 fed­er­al pris­on­ers. During that spree, the Court aban­doned the tra­di­tion­al appel­late prac­tice of defer­ring to low­er court res­o­lu­tions of dis­put­ed issues of fact and — with­out opin­ion — per­mit­ted exe­cu­tions to pro­ceed despite low­er fed­er­al court rul­ings that some of the exe­cu­tions vio­lat­ed fed­er­al law and the U.S. constitution.

Christopher Kang, co-founder and chief coun­sel of the court-reform orga­ni­za­tion Demand Justice and a for­mer Deputy White House Counsel and Special Assistant to the President for Legislative Affairs dur­ing the Obama admin­is­tra­tion, told the Commission that the true prob­lem that needs to be addressed is the Court itself, not the Court’s institutional practices. 

“I had always con­sid­ered myself an insti­tu­tion­al­ist,” Kang tes­ti­fied. ​“I want­ed to advance change from the inside and work through the sys­tem, will­ing to find com­pro­mise and progress from with­in. … But the preser­va­tion of an insti­tu­tion — any insti­tu­tion, even the Supreme Court — can­not be an end in itself. And this Court has proved it is not worth pre­serv­ing in its present form.”

Quoting Penn State Law Professor Eleanor Brown, Kang said: “‘We have all been sold this notion that there is an impar­tial, inde­pen­dent judi­cia­ry work­ing for the com­mon good. People on the left have dis­pro­por­tion­ate­ly bought that fic­tion. People on the right nev­er bought that fic­tion. If peo­ple on the left buy the fic­tion and peo­ple on the right do not buy the fic­tion, it means that peo­ple on the right … are behav­ing in activist ways, they are always acute­ly aware of the stakes and the impli­ca­tions in a way that peo­ple on the left are not.’”

Kang said that a ​“legal elite cul­ture, fueled by Supreme Court prac­ti­tion­ers and aca­d­e­mics, arti­fi­cial­ly props up the Supreme Court’s rep­u­ta­tion for inde­pen­dence” while Republicans have engaged in a ​“one-sided politi­ciza­tion of the judi­cia­ry … [that] does not reflect the val­ues of most Americans and … is tak­ing the coun­try in an increas­ing­ly anti-democratic direction.” 

Kang said the only response to the Republican politi­ciza­tion of the Court was a polit­i­cal rem­e­dy: enlarg­ing the size of the Court. ​“You have heard many peo­ple tes­ti­fy about what reforms would be good or bad for the Court itself,” he said, ​“but I fear you have not heard enough about whether the Court itself is good or bad for the peo­ple who suf­fer the most from its far-right jurispru­dence. We need to ask not only whether a giv­en reform pro­pos­al will help or hurt the Court as an insti­tu­tion, but whether it will help or hurt peo­ple who count on insti­tu­tions like the Supreme Court to pro­tect their rights.”