The Volokh Conspiracy

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Volokh Conspiracy

The "shadow docket" and the Warner execution


I have an op-ed in today's New York Times discussing the Supreme Court's orders. It begins:

A convicted murderer, Charles F. Warner, was executed in Oklahoma last month after the United States Supreme Court denied his request for a last-minute stay. Mr. Warner and other death-row inmates had challenged the state's lethal injection procedures as unconstitutional. In a strange twist, the court agreed to hear his claims—a week after Mr. Warner had been executed.

Traditionally, the court postpones an execution once it has decided to hear an inmate's case. Why did the court wait to accept the case until it was too late for Mr. Warner? Did it decide for some reason to depart from tradition? The court gave no explanation. Four justices dissented from the refusal to stay the execution, but the majority issued only a one-sentence order stating that the application for a stay had been denied.

Mr. Warner's execution illustrates the high stakes in a crucial part of the court's work that most people don't know anything about: its orders docket. …

You can read the whole thing here. And as readers of this blog will surely know, you can read my longer-form thoughts on the "shadow docket" here.