The Capital Shadow Docket and The Death of Judicial Restraint

36 Pages Posted: 14 Aug 2023

Date Written: August 10, 2023


The Supreme Court’s recent approach to late-state execution challenges on its otherwise opaque shadow docket illuminates a court comfortable with playing an aggressive, decisive role in America’s system of state killing. The Court would prefer for us to think of its role differently—as a passive, mere agnostic participant in a process defined by judicial restraint. The Court promotes this vision when it invokes judicial restraint to justify its refusal to second-guess the cruelty of challenged execution methods or when Justices cite federalism-based rationales for refusing to delay state enforcement of death sentences. Even the oft-quoted refrain that “death is different”—the notion that the Court proceeds carefully to enforce the Eighth Amendment as applied to capital punishment—advances a narrative of the Court as careful, constrained, and once removed. In this telling, judicial restraint and constitutional regulation of the death penalty go hand in hand.

And yet, on the Supreme Court’s shadow docket, the Court’s death penalty jurisprudence is anything but restrained. For the last several years, the Court has regularly reversed lower court stays in a series of death cases presenting substantial issues. While decisions addressing death penalty cases on the Court’s emergency orders docket is nothing new, the Court’s willingness to issue momentous, dispositive rulings in death cases through the shadow docket has emerged as an important feature of the Court’s constitutional regulation of the death penalty. This Article contends that the Court’s capital shadow docket does not merely reflect changes in how the Court now approaches norms surrounding requests for emergency relief, as others have illuminated. The capital shadow docket is also a window into judicial regulation of the death penalty devoid of judicial restraint.

Suggested Citation

Condon, Jenny-Brooke, The Capital Shadow Docket and The Death of Judicial Restraint (August 10, 2023). Nevada Law Journal, Vol. 23, 2023, Seton Hall Law School Legal Studies Research Forthcoming, Available at SSRN:

Jenny-Brooke Condon (Contact Author)

Seton Hall Law School ( email )

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