The Supreme Court may be on summer recess but that doesn’t mean the justices are free from work-related obligations.  Throughout the year some of the most significant decisions the justices make are performed unilaterally.  The justices are each assigned to a certain geographic region associated with a judicial circuit or circuits and by virtue of their assignments, they receive applications for stays throughout the entire year.  The justice that evaluates the application then decides if the decision should go to the entire Court.

Along with their normal duties, this summer the justices have had to monitor the Trump Administration’s travel ban, the stay on the ban, and the Court’s injunction on the stay pending the Court’s determination of the case’s merits in the fall.

Alongside this decision, the Court has seen a steady flow of stay applications in death penalty cases.  This is the one application type that consistently crosses the justices’ desks over the summer and generally leads to the same outcome – “denied.”

Nonetheless, applicants persist as the Supreme Court is the last body to decide on many inmates’ fates.  The justices deal with both individual applications as well as capital punishment policy to the extent that it relates to the Constitution.  In its role as constitutional adjudicator, the Court placed a four year national moratorium on the death penalty with the Furman case in 1972 until is reassessed and ultimately upheld the use of capital punishment again in 1976 with the Gregg case.  Since that time the Court has further defined the constitutional boundaries of the death penalty without reviewing the constitutionality of the practice in isolation.

Oftentimes once the Court further defines the constitutional metes and bounds of capital punishment, related cases pending before the Court are summarily decided based on the prior decision’s outcome (as was the case in the example below).

Since the Court adjourned for the summer this June, the justices denied three applications to stay death penalty decisions.  These three decisions compose only small fraction of such decisions the justices have made over the past several years.  The justices have ruled on 117 applications related to individual death penalty decisions from the lower courts since the beginning of 2015.  These decisions, however are not equally distributed among the justices.  The justices’ circuit assignments play a large role in defining the Supreme Court’s front-line in responding to these applications.

The justices often receive multiple applications for stays or related requests from the same inmates as these inmates and their attorneys attempt to persuade the justices to intercede.  Sometimes these come in the form of petitions to the full Court.  When the justices stay decisions over the last two and a half years are broken down by inmate rather than by application, the distribution of decisions by justice is as follows:

Justice Thomas clearly has decided on (and denied) the most applications of the justices.  Justice Thomas’ position at the helm of many of these decisions is by virtue of his previous circuit assignment – the 5^th Circuit.  The 5^th Circuit encompasses Texas among other states, and Texas is the state with the most active use of the death penalty.

The remaining justices are not uniformly silent on these matters, however. The justices can and often do dissent from denials of stays or other requests to delay capital punishment in individual cases.  Out of the 117 applications in such cases since 2015, at least one justice dissented in eleven instances (relating to ten inmates) that were accompanied by a writ of certiorari to the entire Court, and at least one justice expressed that he or she would grant the stay in sixteen instances.  The distribution of these separate statements relating to the applications is displayed below:

The usual suspects responding to denied stays in capital applications were the four liberal justices on the Court – Justices Kagan, Ginsburg, Sotomayor, and Breyer.  Justices Alito, Thomas, Roberts, and Kennedy consistently denied stays in these cases as did Justice Scalia.  Stays were actually granted in six instances relating to four inmates or around 5% of the time.  These stays were typically temporary and were denied soon thereafter.  In one anomalous instance, Chief Justice Roberts also voted to grant a stay as a courtesy to the other justices voting to grant.

Since Justices Thomas and Alito noted they would deny the stay in this instance Chief Justice Roberts’ courtesy vote did not impact the outcome of the decision and Justice Roberts’ statement made clear that he was not about to start voting to grant these applications moving forward.

The justices have been pretty consistent across the board in the Courts’ merits capital punishment decisions.  The type of consistency, however, has differed among the justices.  As mentioned above, four justices regularly vote in favor of the death penalty and four vote against it (while Justice Scalia still sat on the Court and now more than likely with Justice Gorsuch).  Justice Kennedy, while not consistent on the direction of his vote, has maintained a position in the majority in these cases.  In fact, Justice Kennedy is the only justice who has been in the majority in every one of the Court’s merits death penalty decisions since the year 2000 (there were twenty-five in all through last term).

This position has given Justice Kennedy the ability to shift the outcomes in many of these cases.  As his decision is often the most consequential in these cases, Justice Kennedy also authored the most such opinions since 2000.

Each remaining justice authored at most one-quarter of the death penalty decisions Justice Kennedy authored since 2000.  This disparity underscores the potential for Justice Kennedy’s vote to be outcome determinative in these cases.  Many of these cases divided the justices along ideological lines and led to 5 to 4 votes.  All eight of Justice Kennedy’s decisions (as well as several of the other justices’ decisions) were decided by five vote majorities.  The following figure shows the average vote support behind each majority authoring justice in death penalty cases since 2000.

Justice Breyer is the only Justice with near unanimous support in multiple decisions.  Contrastingly, four justices including Justice Kennedy averaged the barest majorities possible across all of their decisions in these cases.

Along with the justices’ positions in these cases one other fairly consistent element involved the players.  Like the justices’ participation in the stay decisions due to their relative circuit assignments, much of the prosecution in these cases is attributable to specific geography.  Of the twenty-five merits cases fourteen involved respondent states.  Their frequencies are below:

Texas far exceeds all other states which is an expected outcome and relatable to Justice Thomas’ involvement in the stay decisions due to his assignment to the 5^th Circuit.  The Supreme Court heard most of these cases after decisions from state rather than federal courts.  This is visible in the figure below:

One quite predictable element of the Court’s summer calendar is that the justices will receive and decide on more stay applications in death penalty cases.  As long as Justice Kennedy does not vote to grant stays in such cases though, the outcomes are and will be by and large predictable as well.  The same can be said for Justice Kennedy’s ability to shift the Court’s stance on the constitutionality of the death penalty generally depending on the cases that the Court hears in this area while he remains on the Court.

---

On Twitter: @AdamSFeldman