What Last Week’s Supreme Court Opinion May Tell Us about the Current Court

Last week, the Supreme Court issued a per curiam opinion summarily reversing the Texas Court of Criminal appeals and finding that a death row inmate has an intellectual disability. The case doesn’t break new doctrinal ground but it offers some possible insights about how several Justices on the newly constituted Court are positioned on capital cases.

The case. The case is Moore v. Texas. It began when the defendant shot a grocery store clerk in the head during a robbery. The defendant was tried capitally and was sentenced to death. On collateral review, he contended that he had an intellectual disability and so was not eligible for the death penalty, and a Texas trial court agreed. The Texas Court of Criminal Appeals reversed, applying a standard partly of its own creation that focused on factors like whether the defendant could formulate plans and could respond competently to questions. In 2017, the Supreme Court reviewed the case, found that the standard applied by the Court of Criminal Appeals was improper, and remanded with instructions to abide by clinically accepted standards regarding what constitutes an intellectual disability. I blogged about the 2017 litigation here.

The Texas Court of Criminal appeals, stating that it was applying the clinical definition of intellectual disability, again ruled that the defendant was not intellectually disabled. The Supreme Court granted certiorari and reversed per curiam without oral argument. It found that the Texas appellate court had, in “too many instances . . . repeat[ed] the analysis we previously found wanting,” relying on the clinically insignificant factors that it had purportedly disavowed. The high court did not give the Texas appellate court a third bite at the apple, instead concluding that “Moore has shown he is a person with intellectual disability” and remanding for further proceedings consistent with that decision.

The lineups. The lineups of Justices in 2017 and in 2019 are interesting.

  • Justices Ginsburg, Kagan, Sotomayor, and Breyer voted for Moore both times, while Justices Alito and Thomas voted against him both times.
  • Justice Kennedy voted for Moore in 2017, and his replacement, Justice Kavanaugh, apparently voted for Moore in 2019. (More on Justice Kavanaugh’s vote below.)
  • Justice Scalia voted against Moore in 2017, and his replacement, Justice Gorsuch, voted against him in 2019.
  • Chief Justice Roberts voted against Moore in 2017, writing a stinging dissent criticizing the majority for tying the Eighth Amendment so closely to medical and clinical standards. Yet in 2019, he voted for Moore, concurring in the per curiam opinion and writing separately to say that while the 2017 opinion does not set a clear standard for intellectual disability, “it is easy to see that the Texas Court of Criminal Appeals misapplied” the 2017 precedent in this instance.

The insights. The voting lineups are interesting for at least two reasons. First, this case is another piece of evidence that Chief Justice Roberts is an “institutionalist,” committed to stare decisis and reluctant to risk the Court’s credibility by changing directions too quickly, and/or is near the ideological center of the Court. Similar lessons may be draw from his decision to join the Court’s liberal Justices in granting a stay in the abortion case that came before the case two weeks ago, and in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the Obamacare case.

The second point of interest concerns Justice Kavanaugh’s vote. It is not noted in the opinion, which suggests that he voted with the majority, as the normal practice apparently is for Justices dissenting from per curiam opinions to do so in signed opinions. As described above, that would put Justice Kavanaugh in line with Justice Kennedy on this case. More generally, it would suggest that Justice Kavanaugh’s vote may be in play in future contested capital cases, just as Justice Kennedy’s often was.

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