Comments on: Death Penalty Stays

By: ohwilleke

ohwilleke — Mon, 15 Oct 2007 19:57:41 +0000

There is a distinction to be made, but I don’t think it belies the basic point that Liptak makes.

There are essentially two periods of time: one from the application for cert to the grant to cert when four justices agree to grant it, and another from the grant to cert to a ruling on the merits.

If I understand this post and the linked materials properly, the courtesy rule to grant stay applies in the second time period, but not in the first. This is still dirty cricket, because you can’t get to the second time period until you clear the first.

One can argue, of course, that this simply means that lawyers for criminal defendants should file sufficiently in advance to get a petition for cert ruled upon before their clients are dead. But, that position has problems.

First, as cases like Baze illustrate, circumstances may come up after the necessary lead time that provide a meritorious basis upon which to file an appeal.

Second, the U.S. Supreme Court does not have a fixed time period in which it rules on a petition for certiorari once it has been timely filed.

Considering that the vast majority of denials take place in the first time period, rather than the second, the first would also seem to be the more important one.

Now, of course, U.S. Supreme Court justices are neither stupid, nor blind. They know that failing to grant a stay can have the same result as a ruling on the merits against the petitioner, except that it doesn’t set a national precedent. But, failing to grant a stay prior to a grant of a petitioner for certiorari, while a petitioner for certiorari is pending, clearly does have the effect of undermining the rule of four for granting a petition for certiorari.

By: Jim Smith

Jim Smith — Sun, 14 Oct 2007 01:21:09 +0000

Wow. What a puff piece. Tom must have his eye on his cases pending before the court.

By: Daniel Gonen

Daniel Gonen — Sat, 13 Oct 2007 21:29:41 +0000

So what do we make of the case of James E. Smith, mentioned in the Liptak piece, or Herrera v. Collins, 502 U.S. 1085 (1992)? Do these cases just represent a temporary breakdown in the courtesy-fifth-vote process?
If it’s true that allowing someone to be executed when the Supreme Court has decided to hear the person’s case is “deeply troubling,” then should there be a firm rule in place to prevent it from happening, rather than just a tradition of judicial courtesy? On the one hand (as the commenter above observes), there actually may be a legitimate reason for 5 Justices to deny a stay even after 4 have voted to grant cert if the 5 are absolutely convinced that they would affirm on the merits. This is a straightforward application of the Goldberg standard, which the Justices have generally used to rule on stay applications. On the other hand, maybe a real commitment to the rule of 4 means the Court should still have to decide such a case on the merits.
Anyone interested in this issue should check out the article by Pam Karlan and Richard Revesz at 136 U. Pa. L. Rev. 1067.

By: Chee Foong Chew

Chee Foong Chew — Sat, 13 Oct 2007 18:51:03 +0000

Thanks for the clarification, Tom. But as I understand from the article and your explanation,
the justices can choose not to grant the stay application even if they were 4 votes to grant the cert.

In my opinion,whether the fifth courtesy vote should be granted or not depends on the situation. If the other five justices are against the petitioner, and doesn’t think they will be swayed by hearing arguments, they could just not give the vote and let the case become moot. Or do you think one of them should grant the courtesy vote and then ask for summary reversal of the petition.