Scottus Focus

Lee Kovarsky is a law professor Bryant Smith at the University of Texas at Austin and co-director of the Death Penalty Center.

Most people are concerned about litigation SB 8 – this New Texas ban Regarding almost all abortions after the sixth week of pregnancy—something has been heard.The Supreme Court can neither prohibit blatantly unconstitutional abortion restrictions, nor can it lift those that the circuit court cannot explain Order Suspending the lower court proceedings, the “rule of law story” is like this, because the Supreme Court’s hands are tied. In this case, the Supreme Court’s procedural principles require it to refuse emergency relief unless the party seeking emergency relief has reason to determine that it will win the litigation. It is true that procedural uncertainty lurks. Sovereign immunity excludes lawsuits against Texas itself, SB 8 privatization enforcement, and circuit precedents for foreclosure lawsuits against state executive officials, and lingering on whether the plaintiff can sue the judicial personnel mentioned in the complaint doubt. But this eulogy to the values ??of the rule of law sounds a bit false.

The Supreme Court issued SB 8 order In the so-called “Shadow dossier,” where it issued orders and brief decisions that did not receive a full briefing and oral arguments. In the past few years-especially in the past 18 months-the court has increasingly Use its shadow file to grant emergency relief in political cases. I have special expertise in one type of shadow file activity: the death penalty.Have 13 federal executions In the last six months of the Trump administration, and related shadow file interventions, no other information was revealed except for the court’s abstention at the conclusion of the case.

I have written a lot of articles about “Trump Execution” elsewhere, Here is some background knowledge. Before the summer of 2020, the federal government had not executed anyone since 2003.President Donald Trump’s Department of Justice decided to allow the federal government to resume executions and began Announce The execution date is the summer of 2019. The federal death penalty injection agreement requires the use of a single drug, pentobarbital, which was developed specifically for animal euthanasia. The first planned execution took place in July 2020, and the transition between Trump and Biden may be imminent in six months.Usually there is an 11th hour litigation shadow Executions, and relevant federal laws ensure that the Supreme Court almost always receives applications for suspension of execution (from prisoners) or applications (from the government) for their release.

In 7 of the 13 Trump executions, the Supreme Court granted emergency relief to the government based on the shadow case file based on the same norms regarding the limitation of relief to certain parties that were reasonably successful in litigation.In each case, the Supreme Court’s intervention Overturn the lower court’s handling of disputed legal issuesIn fact, this remedy allows the execution of the death penalty while the case is pending, and the court dismissed the lawsuit after the death of the prisoner, arguing that the lawsuit has no practical significance. Let me tell you more about the “certainty” of the government’s success in these situations.

Beginning with the Eighth Amendment litigation regarding the use of pentobarbital, the shadow dossier revocation finally affected 4 of the 13 prisoners (Daniel Lee, Wesley Purkey, Dustin Honken, and Keith) · Nelson)’s lower court injunction.exist Barr v. Lee, The Supreme Court’s decision to revoke the injunction is based on Earlier case It involves a substantially different issue, but the Supreme Court seems to see it as a clear rule that the Eighth Amendment allows executions using only pentobarbital.However, a few months later, the U.S. Court of Appeals for the District of Columbia Circuit directly hold Claimant Can State the Eighth Amendment claims against such executions. The legal rules that form the basis of the Supreme Court’s intervention have not been determined at all.

Next consider the execution of the Orlando Hall. Hall asserted that the use of unprescribed pentobarbital violated the Food, Drugs and Cosmetics Act. After the DC Circuit Court ruled that this use of pentobarbital actually violated the FDCA’s decision, the District Court suspended his execution.Supreme Court Free up accommodationIt is worth emphasizing that the Supreme Court is not only when the prospects for success of the party seeking it is uncertain, but also when the party is almost certain to lose On potential legal issues-even if the probability of success based on the merits of the case is considered a necessary condition for such relief.

Perhaps the most shocking of all shadow file orders is the last one, in the Dustin Higgs case.The federal death penalty law has a Terms The execution of federal judgments is required to mimic the judgments of the states where the federal courts are located. In the case that the state where the federal court is located has abolished the death penalty, the statute instructs the sentenced person to appoint another state at the time of sentencing for the purpose of equal execution. Higgs was sentenced to death by the U.S. District Court of Maryland in 2001. At that time, Maryland retained the death penalty, so no other states were designated in the sentencing judgment.But maryland abolition The death penalty in 2013; therefore, the execution of the equality rule will impose a death sentence.

At least, Higgs A new question was raised about how the regulations should be applied to this situation. As the execution date of Higgs approaches—which also coincides with the end of Trump’s term—the federal government is rather hastily (and late) asking for amendments or “additions” to non-designated judgments (whatever that means) , So that a practicing state can be designated retrospectively. The (irritated) district judge believed that he had no right to change the sentence in this way, and the government appealed to the US Court of Appeals for the Fourth Circuit, which actively expedited the appeal schedule for oral arguments in January. . 22 (Two days after President Joe Biden took office).Without providing any substantive reasoning, the Supreme Court Shadow file The stay of the lower court was cancelled, the case file was granted before the judgment, the case was immediately overturned, and the lower court was ordered to retrospectively designate Indiana. Before or after this, I have not been able to find a comparable operation (to make a summary judgment on the request for adjustment papers before the judgment), nor did my colleague, Professor Steve Fradeck, who carefully followed the court’s shadow file activities. (Fladeck also has Argue convincingly The Supreme Court’s handling of the Texas abortion law is inconsistent with its recent shadow file practice in another area: urgent requests related to religious freedom. )

I should mention that there are some significant differences between the Supreme Court’s criteria for suspending and the criteria for ruling injunctions.Have express Statutory power For suspension, the power of court injunctions can be traced back to broader powers All writ billsDespite these differences, both require the party seeking emergency relief to establish a higher possibility of winning the case based on the merits of the case while proving that it intervenes immediately and reasonably damages.Uncertainty, whether it is procedural or substantive, should be a strong weight be opposed to Shadow archive relief.

The comparison between the Supreme Court’s federal enforcement intervention and the SB 8 waiver reveals the problem with the rule of law story. The court’s handling of death penalty litigation is not so much about the clear case of the government’s claims, as it is about the judge’s frustration with the delayed execution and their desire to prevent the Biden government from affecting the execution of the sentence. (The Biden administration later announced Suspension of execution.) There is a reasonable debate about whether more active shadow dossier interventions like those who consider whether to justify the more active interventions cannot be made right. But no one can reasonably argue that the court’s federal enforcement intervention is on the side that will obviously win the potential claim, at least under current law. Therefore, the rule of law stories flooding cable news and social media are absurd. The court refused to ban SB 8 because the five judges chose not to do so; not because modern laws and norms of shadow file practice prohibit it.