Monday, March 8, 2010
Gabriel Chin (University of Arizona School of Government and Public Policy) and Sara Lindenbaum (University of Arizona College of Law) have posted Reaching Out to Do Justice: The Rise and Fall of the Special Docket of the U.S. Supreme Court to SSRN.
In 1964-1967, the Supreme Court put three complicated cases involving individuals in a permanent state of suspension on what would come to be known as the “Special Docket.” Under this largely unknown feature of the Court’s practice, the cases were held without decision until after the parties involved died in the 1990s. Although the impulse to mercy in these cases was understandable (all involved mental illness and two were capital cases), as a small experiment, it must be adjudged a failure, because there is a reasonable possibility that in each case, just outcomes were not achieved. Assuming that the Court thought judicial intervention was necessary to avoid an unjust outcome, using the normal tools of decision might have been better.