The United States Supreme Court often receives attention for the controversial cases to which it chooses to grant certiorari from the states. This week, they are in the news for cases which did not make the grade due to their somewhat unpopular statuses.
The first case that has drawn attention is related to the execution of a convicted murderer last month. Charles F. Warner was executed by means of lethal injection in Oklahoma in January. However, prior to his death, he had filed a last-minute petition with the court for a stay. Warner, along with other inmates sitting on death row, had challenged Oklahoma’s lethal injection law as being unconstitutional. Warner wanted to wait for the results, but the court declined his stay.
This case was not one of the 70 or so cases on which the Supreme Court chooses to hear oral arguments, or one about which it chooses to write lengthy opinions, which normally receive so much attention. Instead, this case came to them via a relatively obscure second source of cases – their orders docket. The orders docket consists of thousands of cases each year for which explanations of the court’s decisions are not issued. This was the case for Warner, as the court simply declined his stay without issuing a reason for its decision.
The interesting thing about this case is that they granted certiorari to his case addressing the unconstitutionality of Oklahoma’s lethal injection after Warner had been executed. The question then arises as to why did they not grant the stay if they were considering hearing his other case. The majority of these orders docket cases are procedural in nature but as shown by this example, they can be life and death decisions.
A second case for which the Supreme Court is receiving attention, even though the court will not be hearing arguments, is a case that was decided by United States Court of Appeals for the Fourth Circuit in Virginia in April. The case addressed the issue of whether a judge had acted out of judicial vindictiveness when sentencing a defendant. The reason the Supreme Court will not hear it is because the lower court chose not to publish the decision. This means that the decision is not binding on the courts of that state.
Justice Thomas and Justice Scalia dissented in the court’s decision not to hear this case. In 1991, Justice Blackmun expressed the opinion that, with regards to unpublished decisions, the Court should not allow them to become a way for lower courts to avoid certiorari. The Fourth Circuit Court made no attempt at disguising its intent to do just that. In their opinion, the first usage of the word “unpublished” is underscored and they also make note that unpublished decisions are not binding. Justice Thomas thought this added to the importance of granting certiorari to the case.
The Supreme Court often receives attention, but this week they are getting it for slightly different reasons. Transparency is often an issue with many who monitor the court because they feel it helps to retain the court’s legitimacy. While presidential candidate Senator Lindsey Graham is already offering Trey Gowdy as a potential Supreme Court Justice appointment, it can be easy to neglect cases that gain considerably less attention than other issues involving the Supreme Court.
By Joel Wickwire