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Swift Decisions, Silent Explanations: Stays of Execution and the 'Shadow Docket'

By Vaidehi Mehta, Esq. | Last updated on

With the recent execution of a Texas inmate that was in part facilitated through SCOTUS's use of the so-called "shadow docket," there is another example of the increasingly controversial – some would say "scary" – use of this judicial method. 48-year-old Jedidiah Murphy, capitally sentenced for fatally shooting an elderly woman during a carjacking, questioned both the evidence against him and the safety of the lethal injections used by the state. He asked the courts to halt his execution while these questions were being investigated, and they did – until SCOTUS stepped in and undid all that. We'll cover a little bit about how the legal processes involved here worked, and what broader implications they have for other cases.

Stays of Execution

Murphy's attorneys had asked for – and were originally granted – a "stay" on his execution. A stay of proceedings, or simply a stay, is a court order that temporarily halts any further legal action in a case, and is usually used to give the court time to consider a pending motion or appeal. In Murphy's case, his lawyers were asking the court to grant a temporary pause in his scheduled execution.

There are several reasons why a judge might grant a stay of execution. There may be new evidence that could cast doubt on the condemned person's conviction or sentence. In other cases, the condemned may be seeking to appeal their conviction or sentence to a higher court; a stay is necessary to keep the defendant alive as his case appeals. Stays may also be granted if there are questions about the legality of the execution method or about the mental competence of the condemned. Sometimes, even the state prosecutor will ask for a stay because the state's agents are behind in getting together the necessary preparations for the execution.

Stays of execution can be granted for a variety of time periods. They may be granted for a few days or weeks to allow the court to consider a specific issue, or they may be granted for months or even years. The granting of a stay of execution does not mean that the execution will never be carried out. It simply means that the execution will be delayed until the court has resolved the issue that led to the stay.

Last year, there were 18 executions carried out, which were concentrated in a few states. That despite the many stays of execution granted at various state courts in the same year. According to the Death Penalty Information Center, those executions raised serious concerns about the methods used and the basis for sentencing the death penalty. Executed inmates included those with serious intellectual disabilities, mental illness, brain damage, or otherwise strong defenses that in other jurisdictions, wouldn't warrant the death penalty.

But in Murphy's case, the stay of execution was even more controversial in that it made it up to the Supreme Court, and was then decided on the "shadow docket."

The 'Shadow Docket'

The "shadow docket" refers to SCOTUS's practice of ruling hastily on certain types of applications that are time-sensitive, such as stays and injunctions. Unlike standard cases that come before SCOTUS, these emergency cases often have no briefing or oral argument from the parties, meaning the Court makes decisions with significantly less information than usual. The decisions are also issued rapidly. Most importantly, perhaps, is that unlike traditional SCOTUS opinions, which come with pages and pages of lengthy explanations detailing why the Court ruled a certain way, decisions in the shadow docket come with little or no explanation at all. That was the case when SCOTUS undid ("vacated") the stay on Murphy's execution.

It should be noted that the shadow docket does serve an important purpose. SCOTUS simply does not have the time and resources to consider every decision that they feel the need to address "on the merits" (meaning, with the full briefing, oral argument, and a written opinion). They can handle about 60 or 70 cases in their "merits docket." For many others, though, they simply have to do a more efficient job with the shadow docket, or they wouldn't get to those important issues at all.

Now, for most orders from the shadow docket, the method doesn't end up being a problem. The orders will often just relate to trivial administrative things, such as setting the due dates for briefs, and so only affect the parties to the case at hand. But other times, such as when SCOTUS is ruling on an injunction, the order can have major consequences for a lot of people beyond those directly involved in the case.

Recent Rise of Shadow Cases and Their Consequences

Today, SCOTUS grants shadow docket rulings twice as often as it did just a few years ago, coinciding with the addition of the latest three Justices, appointed by former President Donald Trump. The shadow docket has become more of a controversial talking point in recent years, as SCOTUS has issued several rulings on high-stakes issues quickly and without their usual explanation. For example, last year, before it overturned Roe v. Wade in a later case, the Supreme Court issued the decision in the extremely contentious abortion rights case of Whole Women's Health v. Jackson. The plaintiff abortion providers sought to block a Texas abortion law. Because they thought that lower courts would not expedite their time-sensitive issue, the plaintiffs sought emergency relief directly from SCOTUS. Thus, when the Supreme Court ruled, it did so in a shadow docket fashion, without full briefing on the arguments and without oral argument.

There are many problems with SCOTUS leaning too heavily on the shadow docket. Just one of them is that lower federal courts don't always know what weight to give their rulings as precedent. Another is that since the rulings don't explain their reasoning, even if lower courts want to follow precedent, they don't always know how to apply it. Some critics of the shadow docket argue that it gives the Court too much power to make consequential decisions without accountability. They also argue that the shadow docket process is unfair to the parties involved, as they often do not have a chance to fully brief and argue their cases. Supporters of the shadow docket argue that it is a necessary tool for the Court to use to address urgent matters.

In the case of Jedidiah Murphy, his fate swung perilously on the hinges of the shadow docket. Capital punishment cases like his underscore the immense power and controversy inherent in this expedited judicial tool. With each new shadow docket case, the nation grapples with a fundamental tension: the urgent need for the highest court in the land to address pressing matters versus the imperative of ensuring fairness, accountability, and clarity in its decisions. The controversy surrounding this expedited process is not merely a matter of legal minutiae; it embodies the very essence of justice itself.

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