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Abstract

After a staggering two-decade decline dating back to the turn of the millennium, the American death penalty is experiencing a notable resurgence. Executions in 2025 climbed to their highest mark in over a decade (forty-seven nationwide), more than 150% of any year since 2015 (twenty-eight nationwide) and the highest total since 2009. These executions span eleven states, the largest number of states conducting executions in a single year since 2000. Relatedly, the Supreme Court of the United States seems less inclined to rein in capital practices. The Court has exhibited increased hostility toward end-stage litigation, illustrated most prominently in its facilitation of more than a dozen federal executions in the closing months of President Trump’s first term. In that period, the Court swept aside lower court stays of execution, often in unsigned orders, and allowed executions to proceed despite substantial unsettled questions about the lawfulness of the executions. The Court’s reluctance to grant stays of executions continued after Trump left office, as the Court denied the vast majority of stay applications from state prisoners, often over dissenting opinions identifying problematic aspects of impending executions. Apart from its antipathy toward end-stage litigation, the Court has expressed skepticism about the long-prevailing methodological focus on “evolving standards of decency” as the touchstone of Eighth Amendment analysis. The Court instead appears inclined to embrace a more historical approach that would tolerate whatever capital practices prevailed at the time of the framing of the Eighth Amendment. If the Court were to adopt such an approach as a holding (rather than dicta) and overrule its evolving standards of decency methodology, much of the prevailing federal constitutional regulatory regime constraining state capital practices would evaporate. …

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