The Volokh Conspiracy

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Judge Tatel's Vision of the Shadow Docket From Inside the Penumbra

"The Court, we were told, 'would really like us to act tonight'—and, if possible, 'within an hour.'"


Judge David Tatel's new book, fittingly titled Vision, has received a lot of press for its criticism of the Roberts Court. But much of the book focuses on insights into judging. I've only started reading the book, but I appreciated his tick-tock account of a July 2020 capital case. Daniel Lee Lewis's case rocketed from the District Court to the D.C. Circuit to the Supreme Court in the span of roughly 24 hours. Apparently, the Supreme Court can bark at lower court judges when they take too long!

Here is a snippet of the chronology:

But everything changed at 10:30 a.m. when I received an email from court staff reporting that a district court judge had just blocked the first of several executions scheduled by the Trump administration. The government had planned to execute a convicted murderer, Daniel Lewis Lee, by lethal injection that very afternoon at the federal death chamber in Terre Haute, Indiana. But the district court had temporarily halted the execution, and our staff anticipated that the Justice Department would quickly ask us to reverse the district court and let the execution proceed. . . .

At 11:52 a.m. the Justice Department informed my court that, as anticipated, the government wanted us to immediately reverse the order blocking Lee's execution so it could move ahead as planned. Now it was up to our three-judge panel—two other D.C. Circuit judges and me—to review the district court's ruling and decide whether Lee would live or die that very day. Ordinarily, the appellate process takes many months, if not longer. . . . Nevertheless, respecting the government's request for speed, we ordered Lee's lawyers to respond by 5:15 p.m. and the government to reply by 7 p.m. . . .

When the briefs arrived, my law clerk read them aloud to me over Zoom, going as fast as possible and stopping only for sips of tea to save her voice. . . . Two hours and hundreds of pages later, I concluded that there was nothing unlawful about the district court's order delaying Lee's execution. . . .

My two colleagues, Judges Thomas Griffith and Patricia Millett, agreed. If you've become accustomed to viewing judges as politicians in robes, you might think it relevant that Judge Griffith was appointed by a Republican president (George W. Bush) and Judge Millett by a Democrat (Barack Obama). But they're judges, not politicians, and both saw what I (appointed by Democrat Bill Clinton) saw: a serious constitutional claim, a thoughtful district court order, and no legal basis to overturn it. . . .

My law clerk and I began drafting an opinion, she on her desktop, me on my black Braille computer. The size of a keyboard, it has six rectangular Braille buttons and connects to an earphone that allows me to hear the words as I type them. As soon as we had a draft, I sent it to Judges Griffith and Millett for their input. We were exchanging edits and refining the draft when, at 9:51 that evening, we received word from the Supreme Court that the justices were growing impatient. The Court, we were told, "would really like us to act tonight"—and, if possible, "within an hour." That kind of pressure was highly unusual, but, recognizing the Supreme Court's higher authority, we did our best to comply. At 11:24 p.m., we released our opinion rejecting the government's request to proceed with the execution. The case, we explained, involved "novel and difficult constitutional questions" that required "further factual and legal development." We then scheduled all remaining briefing to occur within the next ten days, far faster than usual. Fewer than three hours later, around 2 a.m., the Supreme Court voted 5–4 to reverse us. The Court's order was unsigned, but the names of those who approved Lee's immediate execution were obvious because all four justices who objected signed their names to a dissent. The five in the majority were the Court's purported conservatives: Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. . . .

Fewer than six hours later, at 8:07 a.m., the government executed Daniel Lewis Lee.

What a fascinating and riveting account. Tatel writes very well.

I've long suspected that the Supreme Court prods the lower courts when an urgent case is not moving quickly enough on the shadow docket. But this is the first time I've seen a judge confirm it.

For those curious, Tatel does not discuss his service with then-Judge Kavanaugh.


I've been very critical of Supreme Court Justices who sign lucrative contracts to write memoirs immediately upon their confirmation. They would be much better off living a full life, and then reflecting on it. There is much to study and praise in Judge Tatel's decades on the bench. And I am reasonably confident that he did not receive a seven-figure advance.