SCOTUS ‘Shadow Docket’ Leaves Death Penalty Watchers in Dark

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By Kimberly Strawbridge Robinson

The U.S. Supreme Court’s liberal wing has voted inconsistently to stay executions in the dozens of requests that the high court has received since Justice Stephen G. Breyer questioned the constitutionality of the death penalty in a 2015 dissent, research by Bloomberg BNA found.

In only one request did all four liberal justices—Breyer, along with Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan—vote to halt an impending execution while the court took a closer look at the case.

In the other requests, there was a hodgepodge of noted dissents from these justices, including some solo dissents by different justices. For many requests there was no dissent.

There’s no way to tell if these inconsistent votes signal that the liberal justices are struggling with the constitutionality of the death penalty, or if their concerns are limited to case-specific facts, death penalty specialists told Bloomberg BNA.

That’s because these stay requests are part of the “shadow docket"—"a range of orders and summary decisions that defy its normal procedural regularity,” William Baude, of the University of Chicago Law School, wrote in his 2015 working paper, “ The Supreme Court’s Shadow Docket,” University of Chicago Public Law & Legal Theory Working Paper, No. 508 (2015).

“Because of the ‘shadow docket’ problem, it’s hard to read into what’s going on here,” Baude told Bloomberg BNA in an email.

Patching Up Old Wounds

Breyer’s high-profile dissent came in Glossip v. Gross, 83 U.S.L.W. 4656, 2015 BL 206563 (U.S. June 29, 2015), where the Supreme Court narrowly upheld Oklahoma’s protocol for carrying out lethal injections.

There, the court refused to invalidate the state’s execution method because the death row inmates “failed to identify a known and available alternative method of execution that entails a lesser risk of pain,” the court said.

The four liberal justices dissented.

In particular, Breyer and Ginsburg called into question the continued constitutionality of the death penalty.

Rather “than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution,” Breyer said, in an opinion joined by Ginsburg.

Breyer’s Glossip dissent reinvigorated advocates’ push to abolish capital sentences.

No Traction

But in the two years since Glossip, the abolition movement hasn’t gained much traction in the Supreme Court.

To be sure, cases have come before the high court presenting Breyer’s “basic question.” The court has, however, steadfastly turned those away or limited its focus to more narrow issues.

These broader issues are likely to keep coming back to the Supreme Court until it agrees to hear them, Robert Dunham, of the non-profit database the Death Penalty Information Center, Washington, told Bloomberg BNA.

He noted a dozen or so instances where the Supreme Court routinely refused to hear a death penalty issue, only to side with the death row inmate in a later case.

In Hitchcock v. Dugger, 481 U.S. 393 (1987), the court unanimously invalidated a capital sentence after a Florida judge refused to consider, or allow the jury to consider, mitigating circumstances arguing against the imposition of the death penalty.

But close to 20 capital sentences imposed under similar circumstances were allowed to go forward before the court struck down the scheme in Hitchcock, Dunham said.

Similar situations occurred before the Supreme Court prohibited the death penalty for the mentally disabled in Atkins v. Virginia, 536 U.S. 304 (2002), and juvenile offenders in Roper v. Simmons, 543 U.S. 551 (2005), Dunham said.

Inconsistent Dissent

In addition to turning away broad questions on the constitutionality of the death penalty, the court has overwhelmingly rejected requests to stay executions while the court takes a closer look. It takes five votes to halt an execution.

Death row inmates facing imminent execution often file more than one request for a stay.

The liberal justices have occasionally noted their dissent with the refusal to stay these executions. But they’ve done so inconsistently.

For example, all four liberal justices dissented from the refusal to postpone Alabama death row inmate Ronald Smith’s execution while the high court considered whether it’s constitutional for a judge to overrule a jury’s life sentence recommendation to impose the death penalty. Alabama recently became the only state that currently allows capital sentences to be imposed in this manner.

Breyer, however, has often been the sole noted dissent in these refusals to stay executions. Other times, Ginsburg or Sotomayor have been the sole dissenter.

Such inconsistency could indicate that these justices are “struggling with how to handle the death penalty,” Baude said.

Alternatively, “it could be that they are simply being selective in which cases they want to highlight, perhaps choosing the ones they will think will be the most sympathetic,” he said.

Unusual Claims

But these dissents shouldn’t be interpreted as lack of support for the death penalty, Kent Scheidegger, legal director of the Criminal Justice Legal Foundation said. The Criminal Justice Legal Foundation is a non-profit whose mission “is to assure that people guilty of committing crimes receive swift and certain punishment in an orderly and constitutional manner,” according to its website.

The dissents “appear to be based on circumstances of the particular case” or on “the unusual system of the state it comes from,” Scheidegger said.

For example, in Gissendaner v. Bryson, Sotomayor was the lone dissent, noting that she would have granted the stay of execution.

Although Sotomayor didn’t elaborate on why she would have granted the stay, Scheidegger noted that the appellate court below said Gissendaner’s claims were based on the fact that “the warden of the prison where she was housed ordered the prison staff not to speak with Gissendaner’s legal team as they were gathering evidence in support of her application for clemency.”

“That’s an unusual claim,” Scheidegger said.

Procedureal Obstacles

The lack of a noted dissent similarly shouldn’t be interpreted as support for the death penalty.

“While Justices do sometimes write or note dissents from various orders, they do not always note a dissent from an order with which they disagree,” Baude wrote in his 2015 working paper. Therefore, the failure to dissent doesn’t necessarily signal “agreement with the majority course,” he said.

There are a number of fact specific reasons why a justice might not note their dissent in a particular case, Dunham said.

He pointed to Sotomayor’s concurrence in the refusal to stay Christopher Eugene Brooks’s execution.

Sotomayor, in an opinion joined by Ginsburg, wanted to review the underlying issue in Brooks’s request, but thought there were procedural obstacles to considering that issue.

‘Compost Heap.’

The justices’ divided views on the constitutionality of capital sentences means we’re likely to continue to see inconsistency from the court on the death penalty stay applications.

Right now we seemingly have four votes to strike down the death penalty or certain applications of it, three to uphold, and one in the middle, Dunham said.

As is often the case, the justice in the middle is Anthony M. Kennedy.

It’s not clear how Donald Trump’s high court nominee, Neil Gorsuch, will view death penalty cases.

But Scheidegger said the court shouldn’t reconsider the death penalty’s constitutionality anytime in the near future.

“The issue was settled in Gregg v. Georgia,” 428 U.S. 153 (1976), in which the court reaffirmed the constitutionality of the death penalty after temporarily halting it, Scheidegger said.

“Breyer’s compost heap of dubious and hotly disputed claims in Glossip is not a reason to open that can of worms again,” he said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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