Professor Steve Vladeck on the Supreme Court’s Death Penalty Shift

Stephen Vladeck

Robin Maher 00:01

Hello and welcome to “Discussions with DPIC”. I’m Robin Maher, Executive Director of the Death Penalty Information Center. Our guest today is Steve Vladeck, a Georgetown Law professor and expert on the Supreme Court. He writes a weekly newsletter, “One First”, which breaks down the court’s rulings and history. He’s also the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic”, released in 2023. Welcome to Washington, DC, and thank you for joining us Steve.

Steve Vladeck 00:33

Thanks Robin, great to be with you.

Robin Maher 00:34

Well, let’s just jump right in. We’ve got so much to cover, and we’re so interested in hearing your thoughts on a variety of issues. But let’s start with your newsletter. You’ve said in your newsletter that your goal is to, quote, “make the US Supreme Court more accessible to all of us”. Why do you think that’s important? And was there a particular issue or case that motivated you to set this goal? 

Steve Vladeck 00:54

Sure, I think we’ve all seen Robin in different ways, how the Supreme Court affects all of our lives, and not just our politics, right? And you know, whether that’s in the context of reproductive justice or the death penalty or, you know, the regulatory state. I mean, it’s, it’s hard to sort of think of a time in- in most of our lifetimes, where the Supreme Court has been more of a lightning rod and has been more at the front of everything. And it occurred to me that we don’t talk enough about how that came to be and exactly what happened to sort of put the court in the middle of all of this stuff all at once, and that, I think, a lot of not just non lawyers, but lawyers, I think, don’t fully appreciate how the Supreme Court’s role has evolved historically, how its formal jurisdiction has evolved historically and sort of how we’ve got, like, how all of these historical developments are part of how we got here. And so, you know, I wanted to really try to raise the public’s understanding Robin of the Supreme Court beyond what they would get from the newspapers. So beyond, you know, today, the Supreme Court decided this big case, and these justices were on this side, and these justices were on the other. I don’t think the average person understands that much that the Supreme Court’s entire jurisdiction is discretionary. I don’t think folks really appreciate what that invites when it comes to the strategic and tactical behavior of lawyers and parties and the justices themselves when it comes to picking and choosing their cases, and it just seems like all of this is part of the stew in trying to sort of explain the Supreme Court’s institutional hold over so much of contemporary society. But also Robin, what’s different about this court compared to courts of years and decades past. And then finally, you know, if you have problems with the court’s current role in its current hold, how we’d even begin to fix it.

Robin Maher 02:46

Right, and I that’s so interesting, and it sets the stage wonderfully for talking about the death penalty specifically. I mean, the Supreme Court has always been so critically important to- to how we use the death penalty in this country historically. It has set all of the guardrails. It’s- it’s made decisions about laws and processes that control who is sentenced to death, whether you are sentenced to death, and historically, it’s been critical of how the death penalty has been used in the States, but that that’s really been changing. So can you talk a little bit about whether you think the role of the court is changing with respect to the death penalty, and what the consequences of this change might be?

Steve Vladeck 03:26

Oh, I mean, I think there’s no question that it actually has changed, and I would say, hardened, into its current role, which is very modest vis a vis the death penalty. But, you know, it’s worth, I think, pointing out the Supreme Court is really not just a sort of a bystander or a passive recipient of death penalty issues. The court actually is responsible for a lot of where we are today, and that starts in 1972 I mean, as you know well, when the court effectively imposes a nationwide moratorium on the death penalty in Furman vs. Georgia. But then, you know, it’s the court that brings back the death penalty four years later in Greg vs. Georgia and the other July 2nd cases. And what’s so striking about that is that the death penalty the court brought back, was a much more judicialized death penalty, meaning a death penalty that had a whole bunch more rules attached to it, both, you know, rules for how the trials had to go, rules for how the verdict had to go, rules for the sentencing, rules for the lawyers investigations, and, you know, Robin, all those rules had to be and have to be litigated. And the reality is that, you know, I don’t think the Supreme Court in 1976 remotely understood the floodgates of litigation that it was necessarily opening and almost overnight, right? The court is deluged with emergency applications from folks who were on death row having not had the benefit of all those rules who are arguing, “Hey, you know, so Texas or Florida or Oklahoma, they can’t execute me until I’ve had a chance to litigate whether my lawyer did a mitigation investigation, or whether there was juror bias, or whether there was prosecutorial misconduct”, right, like things that just weren’t part of those cases. And so you have the sort of the first generation of the Supreme Court’s reaction, which is, you know, not to be sort of super pro-prisoner, but at least to take those cases somewhat seriously, and then you’ve just had this gradual like beating down of the court, to where fewer and fewer of those claims tended to get the justices attention, even before 1996 when Congress makes it even harder for those claims to actually be litigated. And then, I think the real sort of to get us to where we are today, the real last inflection point is 2018 when Justice Kennedy retires. Because, you know, say, what you will about Justice Kennedy, he would be, you know, sort of critical of his colleagues to the right in capital cases if he didn’t think that they were taking them seriously. I mean, there was an argument, I think it was Trevino vs. Thaler, like 10 years ago, where in the middle of the oral argument, Breyer was making a joke about something, and Kennedy cuts him off and says, “This is all very funny in a capital case, right?”. And it wasn’t just that Kennedy took him seriously it’s that there were at least some areas of law where Kennedy was still willing to look carefully at even 11th hour claims from folks on death row and that’s just not part of justice Brett Kavanaugh jurisprudence at all. And so once Kavanaugh replaced Kennedy, there were no longer five votes for that kind of due care and we see almost overnight, I mean, in the Bucklew case in April 2019, and in all the emergency applications that follow. This is a court that is just done for the most part, right, with emergency interventions in capital cases, and even really for the most part, with any special constitutional constraints on capital cases.

Robin Maher 06:53

So it sounds like you’re saying there was a philosophical change, certainly with the membership, the changing membership on the court, but maybe also reaction to, sort of the overregulation of the death penalty and, you know, the- the need for the court members to be constantly in the weeds, micromanaging these cases. Do you think? I mean, which is it both of those things, one more than the other?

Steve Vladeck 07:15

Both of those things may be in different proportions, depending upon what year it was, right? I mean, there, you know, just the flow of cases. You know, there’s a deluge in the early 80s, and then it sort of turns into a steady stream for a bit, and then there’s a deluge again. I think what frustrates me, Robin is it’s- it’s easy for folks to just say, well, as the Court turned right, of course, it’s, you know, hostility to claims by, you know, prisoners in general, and by, you know, death row prisoners in particular, increased. I think that gets the court- that takes the court off the hook for its own responsibility for creating those claims, and- and not just creating those claims, but creating a series of procedural rules that actually made it harder to bring those claims, except in those truncated, often 11th hour contexts, and so I understand that the court was tired of these cases, but the reason why it was hit with so many of them was its fault. And I think that what’s often missing from the narrative is that the court really could have done other things to take the pressure off of its docket, than just no longer looking that carefully, and, you know, starting to vacate lower court stays of execution, which you start seeing in the mid 80s, right and in Bucklew and Barr vs. Lee, adopting basically a presumption against 11th hour claims, even in cases in which it is absolutely clear that the reason why it’s a late horizon claim has nothing to do right with the prisoner. I mean, it’s just like one could be sort of relatively agnostic, or even not anti-death penalty and sympathetic to the current court, and still think that, like we ought to account for the court’s own role in the story.

Robin Maher 08:56

So let’s talk about a recent case that did get the court’s attention. I mean, if you’ve said, and certainly we’ve seen that so many cases that try to get to the court are rebuffed by the justices who just don’t seem interested or don’t see it as their role to be involved in these cases, particularly when they are close to execution. But they did stop one execution. They stopped the execution- execution for Mr. Richard Glossip in Oklahoma. This is the second time the court has looked at his case. This time they gave him a stay of execution to look at his case more carefully. We just had that argument. It focused largely on issues of prosecutorial misconduct, although over a wide ranging discussion of two hours, almost two hours, of oral arguments. They covered a lot of ground. What were your reactions to listening to that argument?

Steve Vladeck 09:47

Well, first, I think it’s worth adding one piece to this, which is, you know, so why did they pull this one out of the pile? Right? And what is, of course, striking about this case is that the Oklahoma Attorney General is on Gossip’s side. And so the court was in a position where it had a cert petition from, you know, a prisoner on death row, where the state not only didn’t oppose certiorari, but agreed that he was entitled to relief. That’s atypical. And so, you know, why did this get special attention? I mean, I think that that’s why. What is striking to me about this case is that we’re even here, right, which is, you know, if you have, and let me just be clear, in fairness to the Oklahoma AG’s position, right, the Oklahoma’s AG’s position is not that Glossip is innocent, right? The position is that the trial prosecutor’s behavior was sufficiently problematic that Glossip is entitled to a new trial, which Oklahoma says, you know, we’ll convict him again, whatever, right? But what’s striking is, I would have thought any legal system worth its salt at that point would say, all right, fine, go do the you know, go retry him. And instead, you have this remarkable ruling by the Oklahoma Court of Criminal Appeals, right that says, “Oh, actually, there’s a procedural reason why we can’t hear your claim”. Now, you know, I mean, all to say it’s dubious at best, right? And then you have the US Supreme Court, which, instead of just summarily reversing and saying, Hey, Oklahoma, like, you know, Oklahoma’s the AG, is confessing error like we’re done, go back and retry them. The court granted cert, and I think that was the first sign to me that something was amiss, that this wasn’t just a case where, you know, state confesses error and we’re going to go have a retrial. Was that the court took the case up on the merits, and the oral argument, you know, I think, really reinforced that at least some of the just more than three of the justices, whether it’s five is the is the real question, actually have some solace for the Oklahoma Court of Criminal Appeals is procedural ruling which I had trouble with, right because, like, it strikes me much more like a post hoc rationalization for not ordering a new trial in Gossip’s case than a deep jurisdictional point about the power of the Supreme Court to review the Oklahoma Court of Criminal Appeals.

Robin Maher 12:06

And of course, it’s worth noting that the Supreme Court itself asked the question about the jurisdiction. They added that question when they took the case after having conferenced the case multiple times. So it felt to me like that was kind of to make the deal happen, to get cert granted, they were going to make sure that the jurisdiction was in the mix. And then seemed like an inordinate amount of time spent discussing whether the jurisdiction was appropriate. Is that, do you think that was the court looking for a backdoor reason to boot the case, not to address the question on the merits? What do you make of that?

Steve Vladeck 12:39

I mean, I think, I think what I make of that is that the whole fight over whether to summarily reverse or take the case was a fight over jurisdiction. So just to be a jurisdiction nerd for a second, so the Supreme Court does not generally have the power to hear every appeal from a state court. Rather, it can only hear appeals from the state court if the state court decision does not rest on what the court calls an adequate and independent state ground. In other words, not only is there a federal issue in the case, but is the federal issue dispositive such that if we rule for you, it’s going to change the outcome below. And so you know the only ground I mean when, when the attorney general of Oklahoma is saying, “Yes, he should win on the merits, he should get a new trial”, the only ground for opposing certiorari and for opposing reversal has to be that, like the you know, the procedural reason the Oklahoma Court of Criminal Appeals invoked for not granting relief, and that’s a procedural ground based on the Oklahoma Court of Criminal Appeals, is interpretation of Oklahoma State law, which is usually right, sort of the final say. The problem is, is that the Supreme Court’s own jurisprudence about what is and what is not an adequate and independent state. One, Robin is a bit of a mess. And two, I think I can say without getting any trouble, does not conclusively point toward no jurisdiction here. I mean, like there- there are good arguments that the Oklahoma Court of Criminal Appeals decision was not adequate in the way that the Supreme Court has historically understood adequate. Could it certainly seem to be sort of manufactured for this case, right? So I think once the court decided to take up plenary review as opposed to summary review, it was going to be a fight over jurisdiction, because that’s literally the only reason why the court wouldn’t just reverse.

Robin Maher 14:21

All right, I’m gonna put you on the spot now. The question everyone dreads, what are the tea leaves telling you about what’s gonna happen?

Steve Vladeck 14:27

I had thought- so, I had thought before the argument that maybe there were two or three votes for the Oklahoma Court of Criminal Appeals position. I’m now worried that there are at least four and maybe five. I think that at least Justice Kavanaugh and maybe the three democratic appointees are going to be inclined to send this case back for a new trial. I hope Justice Barrett is there too. It did not sound the oral argument like the Chief Justice is especially sympathetic, and so, I think it could very well be 5-4 one way or the other. And it’s pretty remarkable that that’s even a possibility.

Robin Maher 14:59

Yeah, okay, I guess we’ll see. Let me switch now to sort of more other recent events. In a single week, last month, in September, five different states executed five people. One of those people was Marcellus Williams, a black man who had an innocence claim strong enough that the elected prosecutor supported a new trial for him, but the Supreme Court didn’t agree to stop his or any of these executions, though Justices Sotomayor, Jackson, and Kagan would have granted a stay to Mr. Williams. What conclusions did you draw from the way the court chose to act, or, more accurately stated, chose not to act in these cases?

Steve Vladeck 15:39

Yeah I mean, I think you know, for better or for worse, in my own view, is for worse. We’ve seen over the last couple of terms, the sort of the implications of the 2019 ruling in Bucklew and the 2020 ruling in Barr vs. Lee really come to fruition, which is to say, right, that in both of those cases you had different majorities. Well, you had the same majority, but in different contexts, articulating basically a presumption against emergency relief in capital cases. And the presumption, to me, makes no sense, because it is based on the idea that it’s always the prisoner’s fault, and even if you are not especially sympathetic to death row prisoners, it’s just not factually true that the 11th hourness of the claim is always their fault. It is often because of state procedural rules that doesn’t— that don’t allow them to file their claims until a particular window before the execution has been set. But when you have a presumption against relief, right, what that means is that it’s going to take a case with some pretty darn extraordinary circumstances, like Glossip with the Oklahoma, AG, confessing error before you’re going to get the court’s attention. And just to explain why this is a big deal, one reaction from folks as well, this Court’s never going to be sympathetic on the merits of these claims anyway, right? These you know, even if the court took the time to take these cases, you know, the states would win these cases. What’s striking about Barr vs. Lee, especially, right? It wasn’t just a federal prisoner in Barr vs. Lee, but the court specifically had before it a series of unanswered questions of federal law. And as Justice Breyer pointed out in his dissent in that case, right, the court was executing- was clear in the way for these executions to go forward, not by answering those questions, but because there were questions, right? That- that what happens in the context of the Bucklew and Barr presumption is the mere fact that there are questions, as opposed to clear answers in the prisoner’s favor is enough to preclude relief. And that’s, you know, first, that’s a radical shift from 10 or 15 years ago. And second, like we’re talking about the one action government takes that is absolutely, categorically irreparable. It seems like, you know, resolving question, if you know, if there’s even a sort of a puncher’s chance that the prisoner is going to win on one of these questions, it seems like we ought to give them the chance to resolve it, as opposed to saying, Well, you know, you might win, but you might not, therefore we’re not going to block your execution. That’s- that’s what’s reflected in all of these summary denials, right? And even from the, you know, three democratic appointees, right? They’re not dissenting in all of these cases. They’re dissenting in a minority of them, which I think is further evidence of just how far the court has moved on this.

Robin Maher 18:22

Thank you. That’s really interesting insight. Let me ask you about the court’s shadow docket, which, I mean, it’s such an ominous couple of words, “shadow docket,” it sounds very nefarious. You’ve course, looked at this very closely, and the title of your book, “Stealth Rulings to Amass Power and Undermine the Republic”, can you explain, first of all, just what is a shadow docket in ways that are understandable for our listeners, and explain why it’s significant? Why should we care?

Steve Vladeck 18:53

Yeah, it’s funny. I get a lot of grief for the term. First of all, I didn’t coin it. Will Baude at the University of Chicago, coined it. You know, shadows are not inherently pernicious. I mean, you could argue that shadows are the natural consequence of an object blocking a light source, right? It’s what happens in the shadows that matters, which kind of is the story here. You know, when Will Baude coined the term about 10 years ago, he really meant it not as a pejorative. He meant it simply as an evocative shorthand for basically every single thing on the Supreme Court does through an order, as opposed to through a signed opinion after argument and months of deliberations. And so orders can include, Robin, incredibly anodyne stuff, like giving parties more time to file briefs right or, you know, slightly more important, like which cases the court chooses to take up or not pick up, granting or denying certiorari, or, as I think comes up the most often in the capital context, emergency applications where you know a party is asking the court to intervene outside of the normal course of litigation, to change the status quo pending some for sure, some future developments, some future litigation. So, you know, all of that is the shadow docket. And, you know, Professor Baude’s insight, which I think was really important, is that it’s not just that, like by volume, 99% of what the Supreme Court does happens over there in the shadows. It’s that a lot of that’s actually really important. And you know, we don’t talk about that stuff. We don’t teach it. I think the typical person doesn’t really even understand that that’s most of what the Supreme Court does, as opposed to the big, lengthy opinions that get all the media coverage. And so, you know, the reason why I wanted to write a book about it was both to sort of just explain it to everyone and introduce them to it and help them see it, and also use that as a sort of basis for explaining why. I think the way the Supreme Court in recent years has been using it really is a radical and problematic departure from how it had been used historically. And so it’s both a descriptive account and a sort of normative critique, where the descriptive part of the book is trying to help folks be in a position to evaluate the critique.

Robin Maher 21:02

But what’s problematic about it? I mean, why- why should members of the public be alarmed at this?

Steve Vladeck 21:07

Part of what’s complicated is it’s not any one thing. It’s sort of an overlapping of a couple things. So one, at least in the context of emergency applications, the court is granting more of them than it ever has before. That means that the court is intervening earlier in cases than it has in the past, which, again, by itself, not a problem. Two, it is almost never explaining its interventions. And so you know, even when the court is granting emergency relief, it is almost always doing so through unsigned, unexplained orders, so that the parties have no idea why the court is intervening. The public has no idea why the court is doing what it’s doing. And you know that can cause real trouble on the ground as people acting in the utmost good faith can reasonably disagree about like, well, well, what are the court what should we make of the fact that they block this injunction, or that they let this policy go back into effect? Third, the court is treating some of these unsigned unexplained orders as precedents. So the court has been chastising lower courts for not following unsigned unexplained orders, which seems like a pretty remarkable thing to do, right? It’s been, you know, sort of remanding cases for reconsideration in light of unsigned unexplained orders. I’m not sure what a judge is supposed to do with a one sentence order, right? And then I think fourth and the most sort of damning and problematic part of all of it is if you look at large chunks of these orders in cases that look similar other than their partisan or ideological valence, the court’s being inconsistent where it’s grant and relief more often, right in context in which it’s Republican states or right wing groups asking for relief and denying it, when it’s democratic states or left wing groups. And the place where this really comes up in the sort of the part of the book that makes the case that this is undermining the Republic, which is a big charge, is election cases where, you know, the court has had this remarkable pattern of intervening in ways that are almost always right, better for the Republican political party’s position in that particular dispute than the Democratic Party’s position in the dispute, even when the interventions don’t seem consistent With prior interventions. So, for example, right, the court in 2020, intervened a whole bunch of times to basically put lower court rulings on hold that were trying to make it sort of easier for folks to vote during Covid. But when a lower court did the same thing, right in a way that would have been massively beneficial to Democrats in Florida, the court vacated that ruling with no explanation. So you know, the problem, Robin is that the more the court is doing this, and by this, I mean, 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. And you know, that’s a critique we hear with regard to merits cases too, but I think it’s especially exacerbated here by the absence of opinions, by the fact that you can’t point as a defense to the 45 page opinion the justices wrote saying, “No, we actually do this because of these reasons”. So it sounds like you’re saying that this may affect the integrity, the authority of the institution itself? Certainly, at least the public perception of it. I mean, right? The you know, this is sort of getting a bit farther into the weeds, but, like, historically, the reason why, or the court’s own view of the source of its power, is not hard power, right? The court has almost no hard power. The court can’t go out and enforce its decisions. The court has soft power, and the court historically has understood its soft power as being intricate. Ly tied to its ability to persuade, right not Robin to persuade. Not necessarily that we agree that we will agree with the justices principles, but hopefully that we will at least agree that they are principled. And so we might not agree with the principles espoused by the majority, but hopefully we will at least agree that it’s a principle, and that that principle is what’s doing the work, as opposed to the policy preferences of the justices, and when the court is intervening without writing right? And it just so happens that those interventions have a remarkable tendency of lining up with the justices, political and partisan sort of identity. It really under, I think it really gives at least the appearance of serious bad behavior by the court and in the process, undermines the public’s faith in it.

Robin Maher 25:46

And just bringing this back to the death penalty for a minute, you talked a lot about the case of Dustin Higgs, who as a federal death row prisoner who was executed during the last weeks of the Trump Administration. You cited his case as a prime example of how the court has used and abused the shadow docket, or maybe put a different way, not explained itself, in a way that you think would be helpful and appropriate for the public to understand, is that what you meant.

Steve Vladeck 26:09

Absolutely, I mean, what’s so remarkable about the Higgs case? You know Higgs, I mean, in one sense, Higgs is just part of this broader pattern of the court and capital cases. But actually, the court did something really extraordinary and unique in Higgs case. So, you know, Higgs was convicted of a capital offense in Maryland in the early 2000s when Maryland still had the death penalty, and so under the federal death penalty act at the time of his sentencing, right, the district court said you’ll be executed in accordance with the procedures of the state of Maryland. Right. Problem is, is that in between the time when Higgs was convicted and when he was finally slated for execution, Maryland abolished the death penalty, and so you had this sort of, you know, almost law school hypothetical of what happens then. So, you know, the district- this all, first of all, back to the point of, like, who’s responsible for 11th hour litigation, right? This all arises very late, because it’s the Trump Administration in the last couple months of office, trying to hustle to clear out the federal death row. So it’s not till December of 2020 that the district judge in Maryland says, I have no power right to sort of designate a new state, and so I’m kind of stuck, and freezes Higgs’ execution. So the federal government appeals to the Fourth Circuit, the federal appeals court that covers Maryland and the Fourth Circuit sets oral argument for something like January 27, pretty quick, right? But the federal government, that’s not quick enough for the federal government for the entirely obvious reason that by January 27 Donald Trump will no longer be the president. Joe Biden will be the president. Biden- you know, the theory was that Biden would not allow for executions of federal prisoners under his watch. We haven’t had a test of that theory. Right, and so the- instead of waiting for the four circuit argument, the federal government goes to the Supreme Court and it asks Robin not only for the court to lift the stay and let the execution go forward, but to actually resolve the merits of the which state is the right state question before the Fourth Circuit granting something called “certiorari before judgment” leapfrogging the Court of Appeals. Historically, the cases where the Supreme Court would leapfrog the court of appeals were like national emergencies. World War II cases, the Steel Seizure case in 1952 the Pentagon Papers case, the Watergate Tapes case, I mean, like, you know, sort of cases of sort of unquestioned national political significance. This is about one federal prisoner, right, and whether the Trump administration can execute him and the Supreme Court without any oral argument, without really much extended briefing, grants both of the federal government’s requests. So on January 15th, five days before Trump is out of office, the court vacates the stay, and they issue a summary merits decision where they say we’re granting a cert before judgment and we’re returning the case to the district court so that it can designate Indiana as the correct state under the statute. Oh, what a coincidence, Indiana, where the federal execution chamber is right, and what it was just, it was such a just, remarkable sort of assertion of power by the Supreme Court that Robin, like, if it had an explanation, no one knows what it is, because there was no majority opinion. You know, I’ve had-I’ve had folks try to persuade me that the Justice Department was convinced that the Fourth Circuit was acting in bad faith, that the Fourth Circuit was trying to run out the clock. I have a hard time believing that in the abstract but even if that were true, then you got to write an opinion saying so, as opposed to just the summary thing. So Higgs is, in some regards, like the perfect example of where, even if there is a neutral, principal justification for what the Supreme Court did, the fact that the court didn’t provide such a justification makes it look really, really bad.

Robin Maher 29:45

Yeah, that that’s fascinating. And I- it occurs to me that the insistence upon, I’ll call it, secrecy, because it relates to other aspects of how the death penalty is being used by the state, certainly, and the way that they are shrouding all of their procedures and secrecy, it. It seems to me to be a common theme here, where there’s just not enough information for the public to truly understand what’s happening.

Steve Vladeck 30:06

And this is and this is why I wrote the book, and it’s why I write the newsletter, right, which is folks might take different things away from these events than I do, right? And folks might react to the moves the court takes and the arguments the court accepts or doesn’t accept differently than I do, and that’s as it should be. That’s inherent in our legal system. But I want folks to see that this is happening.

Robin Maher 30:26

Right, you got to have the information in order to have an opinion.

Steve Vladeck 30:29

And you know- and you know, maybe we can never expect the court to bring its I mean, you know, there are reasons why at least some of the courts’ deliberations will always have to be secret. But let’s at least understand, right, what is actually happening when the court is deli- like, let’s understand what, what it means that the court is doing this thing that, you know, has a technical term. Let’s understand how we get to a place where the court is or is not acting and so, you know, my goal is to really raise public understanding of the procedural Arcana, because there’s actually a ton of really important exercises of power by the Supreme Court that is obscured, whether deliberately or not, and that’s a separate fight, but that’s just practically obscured by the lack of sort of transparency and by the sort of legal complexity of a lot of it.

Robin Maher 31:17

So I think our time is coming to a close, and before we sign off, I want to get your opinion on two things. More tea leaf reading. What predictions do you have about what we may see from the court in the coming years?

Steve Vladeck 31:31

I mean, this is, this is such a- sort of a cop out answer to give in October. But, you know, I think a lot depends on the election. I mean, I think it’s, it’s a very different, even without the changes in composition that we might see depending upon who the next president is. It’s a very different court in a Kamala Harris Administration than it is in a Trump Administration. Really hard to believe that this court is going to soften in any way on issues related to the death penalty. You know, if anything, maybe it goes even further. You know, for the first time, I think we’re seeing a real chorus among some of the justices for the victim’s perspective in some of these cases, you know, that seems to be only sort of increasing. And so, you know, I think the reality is the sort of the election’s gonna matter in three respects, right? One, with regard to whether we see any changes in the court’s composition. Two, with regard to sort of how the court reacts to the next president, and then three, you know, does the election have any effect on the ongoing discussions of reform in the court? You know, if the Democrats retake the House of Representatives, like regardless of who the president is and who controls the Senate, are they going to start using their subpoena power right as a way of trying to investigate alleged misconduct or abuses by the justices? You know, if the Democrats have even more sort of control in Washington, are we going to see a real effort to pass court reform legislation right? All of this hands in the balance by sort of, not just who wins the presidency, but right who controls both chambers of Congress come next January.

Robin Maher 32:54

And on the subject of reforms, are there any particular reforms that you think would be helpful to restore the integrity, if it needs restoring of the Supreme Court, or increase understanding, or whatever you think. What do you think needs to happen and what reforms would you be championing?

Steve Vladeck 33:12

So I guess, I mean, I think a lot of the reform conversation to this point has been somewhat off the mark. A lot of the conversation is about changing who’s on the court. So you hear a lot of talk from folks on the left about adding seats to the court. You hear conversation about, like, sort of changing the rules, term limits, etc.. I actually think the broader problem here is less about who the justices are, and more about the court’s institutional relationship with the other branches of government. So if you look at, you know, sort of the first 150 200 years of American history, Congress was actually much more involved in the day to day work of the Supreme Court. Congress used to have a lot exercise a lot more control over the court’s docket. Congress used to exercise a lot more control over the court’s budget. And these were all levers, and Congress used these levers not to sort of provoke specific outcomes, but just generally, to keep the court relatively in line. And Robin, for the better part of 35 years, Congress has stopped pulling those levers, and the result is that we have a court today that really does whatever it wants. It you know, it takes whichever cases it wants. It doesn’t take the cases it doesn’t want. It follows the standards of review only insofar as it wants to right, even though Congress has legislated some of them, right? And so I guess I would love for the reform conversation to shift away from, you know, Justice X bad, right, and more toward, like the court as an institution ought to be more accountable, right, so that it doesn’t matter whether justice X is bad, so that, like the justice can be whatever, and they still will be somewhat answerable to the democratic institutions of government. That’s, you know, it’s a hard conversation, because if you, if you tilt too far the other extreme, you start running into judicial independence. But, you know, I think there’s a long way to go before we’d be at- we’d be at- we’d be at that point. And so nerdy things like docket reform right Congress actually take. More control over which cases the court is deciding, something they used to do. Congress actually imposing at least some strings on the court’s budget. Congress creating an inspector general who right instead of creating new ethics rules, could actually be better situated to monitor the justices’ compliance with them. Like to me, the story should shift toward how we make the court more accountable, even if not especially with justices who hold views that differ from us, right? And that’s where I would love to see the reform conversation go if we ever get to a point where we’re having it.

Robin Maher 35:30

Well, I certainly hope we get to that point eventually. I think, I think everybody would welcome that conversation. And I have loved geeking out with you a little bit over this subject. I mean, I think I could talk to you for another hour straight, but I’m sure our listeners are ready to call it a day. Is there anything else you wanted to add, Steve, before we sign off today?

Steve Vladeck 35:47

Just the last thing I’ll say, and I think this is probably deeply consistent, Robin, with your work, is when I started writing the book, I wanted to try to figure out- I had this intuitive sense that something radical had changed on the court with specific regard to sort of how it approached orders, and I tried to figure out, like, what was the catalyst for that radical change? And the eureka moment I had writing on the book I’ll never forget. It was a Saturday afternoon. I was at like a kid gym in the middle of the winter with my two girls, and I had this eureka moment that the moment that turned everything around for the court was when it reinstituted the death penalty in 1976 and you know, whatever you might, you know, it’s not, it’s not sort of a like, you know, was that a wise or unwise thing for the court to do, right? But just it was such a structurally significant thing that the court did with regard to its downstream effects on litigation and on the court itself. And I just think that, like it is a really good reminder that, despite the tendency on the part of, I think a lot of us to just say the death penalty is over there, right? Death is different. Only a handful of states, even still, really robustly, have it, and so we can mostly ignore it. Turns out, here is a really powerful example of a massive and fundamental set of changes in the Supreme Court’s behavior that started out because of the death penalty, and that I think, were largely ignored for the better part of 35 years because they stayed, at least initially, in the death is different space, so that by the time they started seeping into ordinary civil litigation spaces, right? It felt familiar to the justices, but foreign to us. And it’s just- it’s just the sort of the downstream effects of the death penalty and litigation surrounding it, I think are really not to be underestimated.

Robin Maher 37:34

Wow. Well, you’ve given us a lot to think about. I have loved this conversation. Steve, thank you so much for joining us today and for our listeners to learn more about the death penalty. You can visit our website at deathpenaltyinfo.org, and make sure you never miss an episode of our podcast. You can subscribe to “Discussions with DPIC” on your podcast app of choice. Thank you so much, Steve. 

Steve Vladeck

Thanks, Robin.