Editor’s Note: Steve Vladeck is a CNN legal analyst and a professor at the University of Texas School of Law. He is the author of the upcoming book “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.” The opinions expressed in this commentary are his own. View more opinion at CNN.
CNN
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By a 5-4 vote, the Supreme Court cleared the way last week for Alabama to execute Alan Miller, who killed three men in a 1999 workplace rampage. The court ruling came around 9 p.m. Thursday, about three hours before Miller’s death warrant was set to expire. In a turn of events, the state wasn’t able to execute Miller before midnight because prison officials couldn’t access his vein to administer the lethal injection.
Nonetheless, it was the third time in less than a year that the justices have granted a state’s emergency request to allow an execution that lower courts had blocked to go forward.
And like the first two (which divided the high court 5-3 and 5-4, respectively), the majority wrote … nothing. There was no explanation for why the District Court, which wrote a 61-page opinion explaining why Miller was likely to succeed on his challenge to his method of execution, was wrong. There was no explanation for why the conservative-leaning, Atlanta-based federal appeals court, which refused to undo the District Court’s ruling by a 2-1 vote in a 32-page decision, was wrong. There was no explanation for why Alabama was right. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh voted to send a man to his death – and they couldn’t be bothered to tell him why.
The Thursday ruling was, unfortunately, not an outlier. Time and again in recent years, the justices have relied on unsigned and unexplained orders, part of their so-called shadow docket, to grant requests for emergency relief – whether to clear the way for executions, to block state Covid-19 restrictions or to unblock lower court injunctions of federal policies.
Indeed, the ruling was the 17th of the current term (which began October 4, 2021) in which the justices used unsigned orders to undo lower court rulings – and the 14th of those 17 in which they provided no explanation. (During the…
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