If you’re wondering why Chief Justice John Roberts and Justice Brett Kavanaugh joined Justice Sonia Sotomayor’s 5-4 ruling for a death row prisoner this week, I have an idea that has nothing to do with concerns about people’s rights.
As a refresher, Sotomayor’s opinion in Cruz v. Arizona rejected the state’s quest to avoid following Supreme Court precedent, in the case of a man challenging his death sentence on due process grounds.
But why did Roberts and Kavanaugh help Sotomayor form a bare majority? Both justices have ruled against death row prisoners in plenty of other cases, and Kavanaugh joined last year’s Dobbs decision overruling the long-standing precedent from Roe v. Wade.
Of course, it’s possible that the two Republican appointees agreed with Justice Elena Kagan’s point at oral argument that Arizona’s lawyers were pushing a Kafkaesque theory that blocked relief at every turn.
But they might have taken more issue with the lack of respect that the state showed the Supreme Court itself, rather than the lack of respect it showed capital defendants. While neither justice wrote separately to explain their thinking, a 2019 death penalty case from Texas, where Roberts did write separately, provides a clue here.
A 2019 death penalty case from Texas provides a clue here. In that case, about intellectual disability and a man named Bobby James Moore, Texas was trying to get around a 2017 Supreme Court ruling involving Moore that told the state it wasn’t correctly applying precedent. Notably, Roberts dissented from the ruling, but when the state failed to abide by it, he ruled against Texas in 2019 after the case came back to the Supreme Court. He wrote a concurring opinion explaining that, even though he disagreed with the court’s 2017 ruling for Moore, he felt forced to rule against the state in 2019 because it had failed to apply that precedent. So, for anyone wondering why Roberts might have joined Sotomayor’s opinion in Cruz v. Arizona, that could provide some explanation. And it might provide a hint for Kavanaugh, too. The 2019 ruling in Moore v. Texas had a similar lineup to Cruz v. Arizona. In both cases, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented. The fourth dissenter in Cruz, Justice Amy Coney Barrett, wasn’t on the court yet in 2019. But Kavanaugh was, and he didn’t join the Thomas, Alito and Gorsuch dissent. That’s all to say, as I noted Wednesday, that the Cruz case doesn’t signal an anti-death penalty revolution afoot. Rather, it shows the absurdity of Arizona’s position that, perhaps with different justices rejecting it for different reasons, couldn’t carry the day even at this Supreme Court — and even then, in a 5-4 case, it almost did.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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