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For decades, the Supreme Court has been suspicious of litigation under warrant in capital cases. The Court has described last-minute litigation as manipulative and dilatory, a result of gamesmanship by people on death row and their lawyers. With the confirmation of Justice Brett Kavanaugh in 2018, the Court began to extinguish the opportunity to assert death row detainees’ rights against unlawful death sentences and executions, reaching a crescendo of stay vacaturs and denials during the Trump executions. Despite this sea change in capital stay jurisprudence and practice, few scholars have focused on the capital stay as a vital component of capital jurisprudence or recognized the effects of upending the regular practice of litigation under warrant.

This Article clarifies the importance of the capital stay to the adjudication of death row detainees’ rights and argues that the Court’s hostility to the capital stay has four principal effects: First, the Court’s evisceration of the capital stay moots the substantive rights of those facing execution. Second, it undermines the role of the federal courts to protect the rights of Black, disabled, and other disfavored litigants. Third, it warps the usual jurisprudential development of death penalty law by eliminating merits rulings and breaking new ground on the shadow docket. Finally, it instantiates the Court’s refusal to be bound by law or facts, thereby subverting the rule of the law. The capital stay requires additional theoretical development. This Article lays the foundation for that work.



Originally published in Wisconsin Law Review, Volume 2024, Issue 3.

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