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Hofstra Law Review

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Today’s Supreme Court defines its role as choosing from the thousands of cases pressed upon it annually those very few that will best serve as vehicles for the resolution of legal issues of general importance.

  1. A. Ordinary Cases

(1) The necessary consequence is that some litigants will seek review and fail to attain it for reasons having nothing to do with the merits of their claims (e.g., the Court desires to have the issue percolate for a while in the lower courts or in the public arena), and will find on reading the ruling in the case of some later party that their position was entirely correct. The prior litigants will then believe with good reason that justice was not done in their cases.

(2) The Court ameliorates this inevitable harshness through several mechanisms. When a litigant seeks review by certiorari, a self-imposed Rule of Four, dating back to at least 1925, provides that four votes are sufficient to grant the petition. Four votes then suffice to defer action on pending petitions arguably raising the same question. Moreover—and critically—regardless of how a case arrives at the Court, it is subject to a process whose basis is that a judicial body should behave judiciously. The procedures of the Court seek to provide assurance that the ultimate disposition (which ninety-nine percent of the time will be to rebuff the litigant) is reached after the case has been given, or at minimum appears to have been given, as much attention as warranted.

B. Capital Cases

(1) The necessary consequence of the Court’s institutional limitations has an ineluctably harsher impact in capital cases than in other cases. There may be little the Court can do about this problem.

(2) Once the government—which is also the prisoner’s litigation adversary—has chosen to set an execution date, the ordinary ameliorative mechanisms do not work. This is a problem the Court can and should solve. Capital cases under warrant differ from all other cases. They require institutional treatment reflecting that simple truth. If the Court pretends otherwise, then, as at least three decades of sorry experience show, individuals live or die for reasons that are freakishly arbitrary and clouded in secrecy. That seriously damages the appearance and reality both of equal justice under law and of sound judicial decision-making.

The Justices have long been aware of all this—and have pointed it out to each other publicly and privately, sometimes in forceful language, for decades—as have litigants and commentators. But the Court has been unwilling to address the situation, even as recent legal developments have made the problem worse.

Adhering to the issue-oriented spirit of the Idea format and eschewing any pretense to an exhaustive presentation:

♦ Part II summarizes the recent and prior history of the problem.

♦ Part III proposes a rule that in any capital case, regardless of its procedural posture, the votes of four Justices are sufficient to stay the execution, irrespective of whether those four Justices are ready to vote for plenary review of the case. The stay extends to any other cases held for the first one.

♦ Part IV urges the Court, in addition to implementing my proposal, to be transparent (a) in the rationale for the disposition of particular cases, and (b) in the formulation and publication of whatever solution it adopts.


This is a pre-print version of the article. The published version of this article can be found at



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