Brett Kavanaugh Said the Quiet Part Out Loud
Most of the attention on the Supreme Court this week focused on the court’s decision to hear a major abortion rights case this fall. As I noted on Monday, it’s likely that the court’s conservative bloc will use that case to strike a grievous, and perhaps fatal, blow to Roe v. Wade. That news, however, overshadowed a troubling ruling made by the Supreme Court and authored by Justice Brett Kavanaugh in a case involving jury unanimity—one that may also bode poorly for the future of abortion rights, as well as for other precedents standing in the way of the conservative bloc’s designs.The case, Edwards v. Vannoy, sprang from a Louisiana prisoner’s bid for a retrial. A state jury convicted Thedrick Edwards of armed robbery, rape, and kidnapping for an attack that occurred in 2006. Under Louisiana law at the time, only 10 of the 12 jurors had to find Edwards guilty to convict him on any of the charges. At least one juror voted to find him not guilty on each of them. Had he been in 48 other states, it would have resulted in a mistrial. But in Louisiana and Oregon, it was enough to send him to prison.Last year, in Ramos v. Louisiana, the court held that the Sixth Amendment requires a unanimous verdict for a jury to convict a criminal defendant. This might sound obvious to most Americans. Unanimity is required in all but two states in the Union, and it’s the norm in the wider Anglo-American legal tradition. The court accordingly overturned Apodaca v. Oregon—a 1972 decision that upheld the use of nonunanimous guilty verdicts in two states—and held that a nonunanimous guilty verdict is “no verdict at all.”Only two states had ever allowed juries to convict defendants of a crime even if one or two jurors opposed it. In Ramos, the court pointed to historical evidence that both states adopted the practice during the Jim Crow era to dilute the power of Black jurors in their communities. By abolishing the practice, the court ensured that future defendants in those states could only be convicted if all 12 jurors agreed. It also opened the door to retrials for defendants who’d been convicted by nonunanimous juries but hadn’t yet exhausted their appeals.But what about people in prison whose convictions were “final,” meaning they had wrapped up all their appeals, as Edwards had? That’s where the Supreme Court’s thinking on retroactive decisions comes into play. The court breaks down its decisions on criminal law into two categories. First, there are substantive rulings, which affect “the range of conduct or the class of persons that the law punishes.” There are also procedural rulings, which revolve around how a person’s guilt is determined. The Supreme Court hands down far more procedural rulings in criminal cases than substantive rulings in criminal cases.To understand the difference, here’s a hypothetical. Imagine if Alaska passed a law that made it illegal to build a snowman and imposed a five-year prison sentence on those who did. Years later, one of the unlucky souls who was convicted under this law asks the Supreme Court for relief. In a unanimous decision, the justices rule that building a snowman counts as free expression under the First Amendment and strikes down the Alaska law. In so doing, the court strikes at the heart of the substantive issue at hand. Not only would that defendant be released from prison, so would anyone who had been convicted of felony snowman-building, even if their convictions were already final.Ramos, by comparison, was a procedural ruling, since it only affected jury composition. These rulings are never enough to revisit settled convictions under the court’s precedents, mostly for practical reasons. But there is one exception. In the 1989 case Teague v. Lane, the court said that a “watershed” procedural rule—one that represented a profound shift in the criminal justice system—could apply retroactively. Since then, the justices have only identified one watershed rule that would count: Gideon v. Wainwright, the landmark 1963 ruling that extended the Sixth Amendment right to counsel to state criminal proceedings.The Supreme Court hasn’t concluded that any of its other rulings since Teague met that threshold, however, despite multiple opportunities to do so. That led Justice Neil Gorsuch to ask an ominous question of Andre Belanger, who argued on behalf of Edwards, during oral arguments in December. “Is this a false promise?” he asked, referring to Teague. “If it is, should we just admit it’s a false promise? If it isn’t a false promise, then what counts, what principle counts? If DeStefano doesn’t count, Ring doesn’t count, Batson doesn’t count, Crawford doesn’t count? Are we just—who are we kidding and what should we do about it?”Belanger said he agreed with Gorsuch, perhaps thinking the justice meant Ramos was a good opportunity finally to do so. “Your Honor, I couldn’t frame it better,” he replied. “For Teague to mean anything, there has to be something that counts, and that’s why I think that Ramos is more analogous to Gideon than any of these other cases that we have decided in the past.” He argued that Ramos, like Gideon, had “restored our understanding of fundamental bedrock principles” and “took away a case that deviated from those prior precedents.” Applying Teague here, Belanger argued, would not “open any type of floodgate.” In a concurring opinion on Monday, Gorsuch showed that he had something else in mind. “Today, the court candidly admits what has been long apparent: Teague held out a ‘false hope’ and the time has come to close its door,” he wrote, echoing the opinion of the court. “Any decision seeking to enforce liberties enshrined in the Constitution has a claim to ‘watershed’ importance. Instead, we abandon Teague’s test because it poses a question this court has no business asking.”It’s worth noting that nobody actually asked the court to do this. Edwards and his lawyers obviously didn’t want the justices to overturn Teague. Louisiana did not ask the court to do so in its filings; the state simply argued that Ramos didn’t meet the Teague test. Stare decisis, the term used to describe the weight of precedent in American courts, wasn’t discussed at all during oral arguments because no one had any idea it would matter. Had Belanger known that overruling Teague was on the table, he might have hesitated before agreeing with Gorsuch about its shortcomings over the years.Kavanaugh, who wrote the opinion of the court, concluded that Ramos didn’t amount to a watershed rule under Teague. He then noted that the court had declined to apply other consequential criminal-law rulings over the past three decades retroactively. Then he dropped the hammer, declaring that the court would no longer apply its procedural rulings retroactively in criminal cases. Without briefing or argument or even warning, a 30-year precedent was suddenly felled.“Continuing to articulate a theoretical exception that never actually applies in practice offers false hope to defendants, distorts the law, misleads judges, and wastes the resources of defense counsel, prosecutors, and courts,” Kavanaugh wrote. “Moreover, no one can reasonably rely on an exception that is non-existent in practice, so no reliance interests can be affected by forthrightly acknowledging reality. It is time—probably long past time—to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review.”The majority opinion brought out a stinging dissent from Justice Elena Kagan. She argued that Ramos obviously qualified as a watershed rule, and wrote that the majority only escaped this conclusion by overturning Teague entirely. “If there can never be any watershed rules—as the majority here asserts out of the blue—then, yes, jury unanimity cannot be one,” she wrote. “The result follows trippingly from the premise. But adopting the premise requires departing from judicial practice and principle. In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis. It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the ‘special justification’ our law demands.”In theory, the court only decides to overturn its previous rulings in exceptional circumstances and after careful forethought and deliberation. The classical example is Brown v. Board of Education, which overturned the court’s infamous “separate but equal” ruling. The reality is often messier: As I noted last year, Ramos itself showed how the justices can reach sharply different conclusions by each applying their own understandings of stare decisis to a case. But the Edwards ruling goes beyond that. “The majority gives only the sketchiest of reasons for reversing Teague’s watershed exception,” Kagan wrote. “Seldom has this court so casually, so off-handedly, tossed aside precedent.”Perhaps the most troubling aspect of Monday’s ruling is how Kavanaugh tried to defend it from Kagan’s criticism. As Slate’s Mark Joseph Stern noted on Monday, there’s a hint of disingenuousness to the “false hope” framing of overruling Teague. The court’s ruling in Edwards unambiguously makes it harder for prisoners who have exhausted their appeals to challenge their convictions, but the majority acted like it was doing those prisoners a favor along the way. When Kagan noted that the court was short-changing criminal defendants, Kavanaugh replied that Kagan herself had dissented from Ramos as well.“To properly assess the implications for criminal defendants, one should assess the implications of Ramos and today’s ruling together,” he wrote. “And criminal defendants as a group are better off under Ramos and today’s decision, taken together, than they would have been if Justice Kagan’s dissenting view had prevailed in Ramos. If the dissent’s view had prevailed in Ramos, no defendant would ever be entitled to the jury-unanimity right—not on collateral review, not on direct review, and not in the future. By contrast, under the Court’s holdings in Ramos and this case, criminal defendants whose cases are still on direct review or whose cases arise in the future will have the benefit of the jury-unanimity right announced in Ramos.”This rebuttal might not sound strange on its own, but it’s fairly unusual for a Supreme Court opinion. Whoever writes the decision on behalf of the majority is speaking for the Supreme Court itself, not for Brett Kavanaugh or for Elena Kagan or for anyone else. It’s not uncommon for the majority to address arguments raised in dissents. But it is unusual for Kavanaugh to take such a personal swipe at Kagan here. He does not really rebut Kagan’s argument; he simply brushes it aside because she’s the one making it.What’s more, Kavanaugh sounds less like a Supreme Court justice making a reasoned argument and more like a congressional candidate ticking off how an incumbent voted on various pieces of legislation during an election debate. Kagan’s views did not prevail in Ramos, but if she takes her duties seriously, she is still supposed to apply it as precedent in future cases. As Kagan noted in a footnote in her dissent, Kavanaugh’s framing here is not really how judges are supposed to think about cases.The majority’s final claim is that it is properly immune from this criticism—that I cannot “turn around and impugn” its ruling—because “criminal defendants as a group are better off under Ramos and today’s decision, taken together, than they would have been if [my] dissenting view had prevailed in Ramos.” The suggestion is surprising. It treats judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. I see the matter differently. Judges should take cases one at a time, and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray. No one gets to bank capital for future cases; no one’s past decisions insulate them from criticism. The focus always is, or should be, getting the case before us right. Crafting majority opinions is a group effort for the Supreme Court: The justices read one another’s drafts, provide feedback and criticism, and tinker accordingly. That Kavanaugh’s “scorekeeping” made it into the final draft suggests that none of the other justices in the majority had too much of an issue with it. If this is how the Supreme Court’s conservative supermajority is going to decide cases and justify them from now on, then Monday was even more ominous for liberals than it initially seemed.
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