Jurisprudence

Did Backlash Over the Shadow Docket Spook the Supreme Court?

The justices agreed to hear a death penalty case rather than ruling in the dead of night. A religious liberty angle likely made the difference.

The Supreme Court at sunset.
Drew Angerer/Getty Images

On Wednesday night, the Supreme Court did something surprisingly sensible. Rather than resolve yet another dispute over the death penalty on its shadow docket, the Supreme Court blocked an execution and set the case for oral arguments. For more than two years, the justices have been furiously arguing about the question presented in this case: whether religious prisoners have a right to bring their faith advisers into the death chamber and, to varying degrees, communicate with them during the execution. This debate has occurred almost exclusively through concurring and dissenting opinions accompanying rushed, late-night orders with no majority opinion. It has deprived lower courts of any authoritative ruling, forcing them to scour cryptic, threadbare decisions for guidance.

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Now, at long last, SCOTUS will squarely consider the rights of these condemned people. Its latest move may well be a response to criticism of the court’s shadow docket—those unsigned emergency orders often issued late at night after minimal briefing and no oral argument. This criticism has been building for years, but it exploded last week after five Republican-appointed justices functionally overturned Roe v. Wade in an unsigned, one-paragraph order released at midnight.

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Critics should be encouraged to see the justices give this case the full consideration it deserves. At the same time, we should not pretend that the court would’ve given such careful consideration to a regular death penalty case. In recent years, the Supreme Court has continually evinced special solicitude for religious liberty cases, and Wednesday’s order was no exception. Plaintiffs seeking to vindicate their free exercise rights get a fast track at this court that most other parties, including nonreligious death row inmates, can only dream of.

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The fight over religious freedom during lethal injection erupted on Feb. 7, 2019. That night, by a 5–4 vote, the Supreme Court allowed an Alabama prison to exclude a Muslim inmate’s imam from the execution chamber. The prison allowed a Christian chaplain to accompany individuals in the chamber, but not other faith figures. SCOTUS’ disregard of such flagrant discrimination sparked widespread, bipartisan backlash. One month later, the court reversed course, preventing Texas from executing a Buddhist inmate without access to his spiritual adviser. The justices continued sniping at each other for months but never actually took up a case that would allow them to render a definitive verdict on a prisoner’s right to religious guidance in their final moments.

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This behind-the-scenes battle grew more mysterious on Feb. 11, 2021, when the court blocked the execution of Willie Smith. A Christian, Smith requested the presence of his pastor in the execution chamber; predictably, Alabama refused. Kagan—joined by Justices Stephen Breyer, Sonia Sotomayor, and Amy Coney Barrett—wrote to explain why she thought Smith’s execution would violate a federal law that protects the free exercise of incarcerated people. But there was no majority opinion, and it was literally impossible to identify who cast the fifth vote. Lower courts could not possibly figure out what a majority of the court believed given that the court had never produced a majority opinion.

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Soon, presumably, that will change. In November, the court will hear the case of John Henry Ramirez, who is incarcerated on Texas’ death row. Ramirez wants his pastor to pray with him during his lethal injection and lay his hands on his body at his moment of death.* The lower courts rejected this request. Most commentators expected the Supreme Court to either permit his execution or block it as a violation of religious freedom. It did neither. Instead, on Wednesday, it paused his execution so the court could hear his claims in its coming term. Put differently, it moved the case from the shadow docket to the merits docket—from the dark into the light.

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That’s exactly what many critics have encouraged the court to do in a wide range of cases for several years. After Brett Kavanaugh and Amy Coney Barrett joined the court, the conservative bloc began exploiting its shadow docket exponentially more often. The court used this tactic to curtail voting rights in the run-up to the 2020 election, intervening so aggressively that House Democrats have sought to roll back SCOTUS’ power to wade into election disputes. Then, beginning in late November, the five justices to Roberts’ right launched an unprecedented campaign to remake the law of religious liberty. Flouting the court’s own procedural rules, these five justices radically redefined the First Amendment’s free exercise clause to shield houses of worship from COVID restrictions. More recently, the majority has used the shadow docket to end the Centers for Disease Control and Prevention’s eviction moratorium, revive Donald Trump’s anti-refugee “Remain in Mexico” policy, and permit Texas to ban virtually all abortions.

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These moves, especially the court’s assault on Roe in the dead of night, prompted protest from legal scholars, Democratic lawmakers, and liberal justices on the court. Congress has already held one hearing on the court’s abuse of its shadow docket and scheduled another in light of the Texas decision. There’s no way to prove that the court’s retreat from the shadow docket on Wednesday was a reaction to this scorn. But it seems quite likely that the recent outcry factored into the court’s step back from the brink.

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Sensible as that decision may be, it is yet another example of the court’s wildly inconsistent use of the shadow docket. As University of Texas School of Law professor Lee Kovarsky has pointed out, the Supreme Court refused to halt any of the 13 executions that occurred in the final six months of the Trump administration. It did, however, overturn seven stays of execution, clearing the way for lethal injection. Many of these cases involved genuinely difficult and unsettled questions of law that divided lower courts. The Trump administration devised an execution protocol that may well have violated the federal law that dictates the method of execution for federal inmates. Yet the Supreme Court’s conservative justices used the shadow docket to move these executions forward. Why? These justices seemed eager to facilitate the administration’s quest to kill as many people as possible before Joe Biden entered the White House and imposed a moratorium on federal executions.

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So skeptics of the shadow docket have reason to celebrate after Wednesday. But we should also acknowledge that the justices would not have handed this opportunity to a typical death row inmate. Religious freedom claims continue to get special attention at this court, a solicitude that other plaintiffs never received—including those who faced unlawful execution in the waning days of the Trump administration. It’s good news that John Henry Ramirez will get his day in the Supreme Court. That shouldn’t obscure the fact that countless people with equally important claims never received the same courtesy.

Correction, Sept. 13, 2021: This article originally misgendered Ramirez’s pastor. He is male.

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