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 —
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 court’s previous term, 20 of its 24 grants of emergency relief likewise came with no opinion.)
The Miller case highlights the costs of the justices’ refusal to explain themselves. Miller claimed that he had requested to be executed via nitrogen hypoxia rather than lethal injection (as is his right under Alabama law).
The state claimed that it had no record of receiving the form, and so it believed it was free to use its lethal injection protocol. The District Court, after conducting an evidentiary hearing, found that it was “substantially likely” that Miller had in fact submitted the form, and that the state had simply misplaced it.
That kind of factual finding by a trial court is typically given significant weight on appeal, and can only be overturned if an appellate court concludes that it was “clearly erroneous.” The idea is that the trial court is entitled to deference. The lower court is not only closer to the issues but has had the chance to hear from witnesses and to assess their credibility directly.
No one disputes that the Supreme Court has the power to overturn a lower court’s conclusions, whether as to law or fact. The problem is the impression that the justices leave when lower courts have gone to great lengths to explain and defend their rulings, and, as in Miller’s case, the court overrides them summarily. The court at least appears to be acting for political reasons rather than legal ones.
To take another example, consider the justices’ summary ruling in June in a challenge to Louisiana’s congressional redistricting. After a lengthy evidentiary hearing, a federal judge issued a 152-page ruling explaining in detail why the district maps adopted by the Louisiana Legislature impermissibly diluted the votes of Black Louisianans in violation of the Voting Rights Act. The District Court ordered the Legislature to try again, specifically concluding that there was plenty of time to draw lawful maps before the 2022 midterm cycle.
The 5th US Circuit Court of Appeals – which legal experts consider to be the most conservative appellate court in the country – refused to undo that ruling, issuing a unanimous, 33-page ruling of its own that explained not only why the District Court’s decision was likely correct, but also why the Supreme Court’s skepticism of voting-related injunctions as elections approached didn’t apply to the Louisiana dispute.
Undeterred, Louisiana asked the Supreme Court to put its unlawful maps back into effect for the 2022 midterms. And in an unsigned, unexplained order, the justices once again obliged – this time over public dissents from Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
There is no serious argument to be made that the Supreme Court should be required to explain all its actions. The justices receive more than 5,000 appeals every year and quite obviously can’t provide a detailed explanation of their decision not to take up most of those cases. One might even defend the practice of not typically providing an explanation when denying a request for emergency relief, including when a death row inmate asks the justices to block an execution that lower courts have allowed to go forward.
But whatever one thinks of the underlying merits in each of these cases, it ought not to be a controversial proposition that, when the Supreme Court acts in a way that upsets the status quo – clearing the way for an execution that lower courts had blocked, staying a lower court ruling that had blocked a state from using an unlawful congressional district map, blocking state Covid-19 restrictions that were challenged on religious liberty grounds – it owes an explanation, not just to the parties who are directly affected by the justices’ action, but to the lower courts whose own (often exhaustive) efforts were thus put to naught and to the public at large.
For decades, the Supreme Court has tied its legitimacy at least in part to its ability to offer principled explanations for its decision-making. The idea is not that the court’s legitimacy flows from whether it’s getting these cases “right”; it’s that it flows from public acceptance that its decision-making is informed by principles – even principles with which many of us might disagree. Justice Amy Coney Barrett succinctly summarized this idea in an April speech at the Ronald Reagan Presidential Library: Before we become too critical of the court for handing down decisions that we think are wrong, we all need to “read the opinion.”
That’s all well and good, but before we can read the Supreme Court’s opinion, the justices have to write one.