Professor Baude illustrated these secret decisions with the following story:
A convicted murderer, Charles F. Warner, was executed in Oklahoma last month after the United States Supreme Court denied his request for a last-minute stay. Mr. Warner and other death-row inmates had challenged the state’s lethal injection procedures as unconstitutional. In a strange twist, the court agreed to hear his claims — a week after Mr. Warner had been executed.
Traditionally, the court postpones an execution once it has decided to hear an inmate’s case. Why did the court wait to accept the case until it was too late for Mr. Warner? Did it decide for some reason to depart from tradition? The court gave no explanation. Four justices dissented from the refusal to stay the execution, but the majority issued only a one-sentence order stating that the application for a stay had been denied.
Mr. Warner’s execution illustrates the high stakes in a crucial part of the court’s work that most people don’t know anything about: its orders docket.
The orders docket is intriguing. As mentioned, "[t]he orders docket includes ... which cases to hear, procedural matters in pending cases, and whether to grant a stay or injunction that pauses legal proceedings temporarily. There are no oral arguments in these cases and, as in Mr. Warner’s situation, they are often decided with no explanation. Despite their obscurity, these orders — there are thousands each year, if you count decisions not to hear cases — are significant. Consider the flurry of orders issued in the month before the 2014 election. The court stopped Wisconsin from implementing a strict voter identification law while it allowed a similar law to be implemented in Texas, and it also stopped lower courts from expanding early voting in Ohio or voter registration in North Carolina."
And Baude goes on to note the implications from the lack of transparency. "This lack of transparency has a practical impact. Because the court doesn’t issue opinions in these cases, lawyers don’t know what legal standards to apply when litigating the issue again in the future. These procedural issues also affect the lower courts, which are supposed to follow Supreme Court precedent. But because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements."
Baude offers a fairly simple recommendation to the Court. "What could the court do? First, it could provide more written explanations. It would not need to do so in every case. It could, however, briefly explain its decision when it either reversed a lower court decision, or when it proceeded in the face of a written dissent. In both cases, the presence of a thoughtful written opinion on the other side shows that the court’s decision is not so obvious as to go without saying. In many cases these explanations would take only a paragraph or two — but they would be a big improvement over our current, murky practices."
The story is fascinating on its own, but it also provides a wonderful example of a tenure-track professor using a major news outlet to expose his or her scholarship. You see, Professor Baude linked to a longer article on the topic that was published in January and uploaded to SSRN.
This is a wonderful way for law professors to advertise their scholarship and reach a wider audience.