A couple months ago, the Supreme Court lifted a stay of execution in Dunn v. Ray, allowing Alabama to execute a man despite the prison’s refusal to let his imam attend to him in the execution chamber. While much of the controversy about the case was about the religious discrimination angle, the Court’s opinion stressed an issue of timing — the Court claimed that he had raised the issue too late in the day, and that this was an independent reason to deny his claim for relief. Four Justices joined a very powerful dissent written by Justice Kagan. (I wrote about this here.)

Then in late March, the Supreme Court granted a stay of execution in Murphy v. Collier, a similar case out of Texas (this one involving a Buddhist). Two Justices, Thomas and Gorsuch, announced their dissent. Justice Kavanaugh, who had necessarily joined the majority in Dunn v. Ray, wrote an opinion explaining why he ruled in favor of the prisoner on the religious discrimination issue. He also included a footnote announcing that the case was different from Dunn v. Ray on the timing issue because “Murphy made his request to the state in a sufficiently timely manner, one month before his scheduled execution.”

Many observers were not convinced that the timing was that different, since Ray had made his request to the state two weeks before his execution, and the difference between two weeks and a month seems somewhat arbitrary. Indeed, Ray actually filed his lawsuit sooner than Dunn. Ray sued ten days before his execution; Murphy sued in state court eight days before his execution and in federal court two days before his execution. But Ray died and Murphy lived.

Because both of these decisions were dealt with on the orders list (or the “shadow docket”) rather than the merits docket, the Court provided only very brief explanations of its decision. Justices Gorsuch and Thomas did not explain their dissent in the Murphy case. We also do not know how Justice Alito or Chief Justice Roberts voted in Murphy. Unlike with merits opinions, it is possible for a Justice to dissent from an order without publicly noting it, so the decision might have been 7-2, 6-3, or 5-4. And if those justices voted with the majority in Murphy, we don’t know whether they agreed with Justice Kavanaugh about how to distinguish Dunn. But the combination of the cases prompted various explanations, such as the possibility that different lawyering or different amicus participation made the difference, or that the Court had felt the blowback from its Dunn decision and was quietly beating a retreat.

Then the plot thickened. In Bucklew v. Precythe, a merits case about an Eighth Amendment challenge to an execution protocol, Justice Gorsuch’s opinion for the Court included a 2-page section at the end of the opinion raising general concerns about litigation that delayed the death penalty. The Court reiterated that “federal courts can and should protect settled state jugments from undue interference by invoking their equitable powers to dismiss or curtail suits that are pursued in a dilatory fashion or based on speculative theories.” And it doubled down on Dunn v. Ray, including a long footnote reiterating Ray’s claim had involved undue delay. So it doesn’t seem like there is a retreat.

Finally, last night in Dunn v. Price, the Supreme Court divided 5-4 over another request to lift a stay. The Court lifted a stay imposed by the Eleventh Circuit because Price’s complaint was too late — but he had challenged his April execution in February (though he had also “submitted additional evidence … a few hours before his scheduled execution time”) rather than electing that method of execution last June. Justice Breyer wrote a dissent joined by four Justices that began “Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our Court this evening.” He emphasized that he had just wanted to delay discussion until today, when the Justices could discuss the case in person, rather than dealing with it in the middle of the night. Ironically, the Court’s own decision that Price’s litigation came too late itself came too late. Apparently because the Court’s decision didn’t come out until after 1 am EDT, Alabama’s death warrant expired and will have to be renewed in a month.

It seems clear to me that the Court is attempting to signal a significant shift in how it handles death-penalty litigation, but it is struggling over how to carry it out, and also likely divided over whether that shift is a good idea in any event. This problem is significantly exacerbated by two procedural features of the death penalty shadow docket. One is that these decisions are made with a modest amount of briefing, no oral argument, and without the Justices meeting in person to talk about them. The other is that these issues come up on a tight time frame, often in the middle of the night. Both the majority and the dissent are trying to respond to these features, but in different ways that each presuppose the correctness of their proposed solutions.

I say this as somebody with a great deal of sympathy for the Court, who thinks that the death penalty is justifiable and constitutional, but: this is no way to run a railroad. If the Court wants to regularize its death penalty procedures or stop the last-minute filings, it might be time to consider any of the following: promulgating a new Supreme Court rule setting out some deadlines or timeliness rules; adopting a general presumption of deference to the lower court in last-minute filings; adopting a general presumption of deference to the district court in last-minute filings; granting certiorari and oral argument in one of these shadow-docket cases so that some specific timeliness principles could be discussed, adjudicated, and adhered to; keeping all of the Justices in the building on execution night so that they can discuss controversial orders in the conference room. I’m sure somebody else can think of better ideas.

But I fear that muddling through these cases on the shadow docket will not produce the procedural regularity or early filing that the majority claims to want, and if it goes on much longer, it may also give Justice Breyer’s accusations of arbitrariness the unfortunate appearance of truth.