The Volokh Conspiracy

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Volokh Conspiracy

The death penalty 'courtesy' stay has disappeared already


Last night the state of Alabama executed Ronald Smith, and the Supreme Court, by a 4-4 vote, denied a stay of execution.

However, as BuzzFeed notes, last month the Supreme Court voted to stay an execution by another Alabama man, Thomas Arthur, raising similar claims. A fifth vote to stay the Arthur execution came from Chief Justice John Roberts, who wrote:

I do not believe that this application meets our ordinary criteria for a stay. This case does not merit the Court's review: the claims set out in the application are purely fact-specific, dependent on contested interpretations of state law, insulated from our review by alternative holdings below, or some combination of the three. Four Justices have, however, voted to grant a stay. To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy.

That same "courtesy" vote does not seem to have been offered in last night's execution, and as of yet we do not know why the Arthur execution merited courtesy and the Smith execution did not. There are several conceivable explanations, some more troubling than the others. For instance:

  • Perhaps in the intervening month, the justices have had "the opportunity to more fully consider the suitability" of review on these issues, and it is now clear that there will be no review.
  • Perhaps the courtesy vote was a one-time experiment, and for some reason unknown to us, it has been deemed a failure.
  • Perhaps in the Arthur case the dissenting justices asked nicely or pleaded fervently, and in the Smith case they did not.
  • Perhaps courtesy votes were a way to build a friendly relationship with Justice Stephen Breyer, when it seemed as though Breyer was likely to be in a voting majority a lot more often than he is now.

I am not inclined to jump to conclusions and assume that it was one of the troubling explanations. But we do not know what the official explanation is. For these kinds of decisions—on what I have called the "Shadow Docket"—the justices do not usually explain their reasoning at all. And if they do provide an explanation, as with the "courtesy" vote last month, they don't feel any obligation to continue providing explanations if they do something different later. So it is not clear whether we will ever know why the two cases were treated differently.