In my research into the history of #SCOTUS’s shadow docket, I’ve long been puzzled at why, circa 1980, the Court stopped formally adjourning over the summer — and instead simply “rose” for its recess, preserving its ability to rule without formally returning for a “Special Term.”
With a big assist from superstar RA @bonnie_e_d, we now have the answer: It was a response to the sharp rise in emergency applications related to impending executions — which (unsurprisingly) ticked up sharply starting in 1979, as states began to carry out post-Gregg executions.
Why did that require the Court to remain in session? Before 1972, individual Justices routinely handled execution-related applications.
The problem by 1980 is that the Court was bitterly divided over the death penalty, so there were reasons to not give one Justice the last word.
The problem by 1980 is that the Court was bitterly divided over the death penalty, so there were reasons to not give one Justice the last word.
This will be fully fleshed out in the book, but the moral of the story is how so much of the Court’s modern (and problematic) shadow docket practice has its roots in the explosion of death penalty litigation in the late 70s and early 80s — an explosion the Court *itself* caused.
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