The Supreme Court’s handling of an application to stay an execution may be one of the most suspenseful facets of judicial procedure. Life and death literally hang in the balance during this little-known and not-so-visible emergency litigation.
Generally, a stay is an interim order that halts the effect of a lower court ruling. Stays in the Supreme Court are governed by one over arching principle: irreparable harm. They’re sought in many types of cases, from water rights and same-sex marriage disputes to election and death penalty cases. But applications for stay rarely get more dramatic than in death penalty cases, where irreparable harm is easily demonstrated.
The Court typically receives about 60-65 death penalty stays each term, and frequently rules on them without scheduled conferences. What happens in between one’s filing and the Court order is largely unseen to the public eye.
For example, on October 18, 2012 at 3:30 PM the Court was presented with an emergency application to stay the execution of Anthony Haynes, just 150 minutes before he was set to be executed.
Haynes was convicted in Texas for the 1998 killing an off-duty police officer. The state alleged that Sergeant Kincaid and his wife pulled their car to the side of the road after their windshield was hit with a 25-caliber bullet shot by Haynes. After Kincaid identified himself as a police officer, Haynes shot him at point-blank range in the head. Kincaid died hours later.
After more than a decade of appeals focusing on his constitutional rights, Haynes remained firmly on Texas death row, where more inmates are executed each year than in any other state.
Here’s the text of the Supreme Court’s docket entry from the day it received Haynes’ emergency stay application:
|Oct 18, 2012:||Application (12A369) referred to the Court.|
|Oct 18, 2012:||Application (12A369) granted by the Court. The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Scalia and Justice Alito would deny the application for stay of execution.|
The Court granted the stay over dissents by Justices Scalia and Alito, ruling that the stay would remain in effect until the merits of the case could be decided.
In dissent, Justice Scalia argued: