The Supreme Court exercises power not only in how it decides cases but in which cases it chooses to decide. We were reminded of this reality by a new dissent from Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson.
That dissent came Monday on the court’s order list, a routine document publicizing action in pending high court appeals. That action is mostly unexplained refusals to hear petitions for review. But sometimes the justices make their thoughts known. That’s what happened in the case of Missouri death row prisoner Lance Shockley, whose petition the majority rejected over Sotomayor’s dissent.
The legal issue presented by Shockley’s appeal might sound dry, but it is quite important.
It takes four justices to grant review. The two-justice dissent therefore reinforces the power the court has in shaping its own docket, as well as the importance of the court’s membership to how that docket is shaped. Sotomayor and Jackson have previously called attention to criminal cases their colleagues have refused to hear. They’re two of the three Democratic appointees on the nine-justice court with six Republican appointees.
The legal issue presented by Shockley’s appeal might sound dry, but it is quite important. It involves something called a “certificate of appealability,” which state prisoners must secure in order to press appeals in federal court. The ability to obtain such certificates differs around the country, and by turning down Shockley’s appeal, the justices turned down the opportunity to clarify the rules and make the law uniform.
The federal circuit in which his case proceeded has a stricter process than other circuits. So even though a judge voted to grant him the ability to appeal, that judge was overridden by other circuit judges, thus depriving Shockley of an appeal. Sotomayor wrote that she would have granted review to resolve the differences among the circuits “and decide whether the Courts of Appeal can dismiss an appeal after a judge votes to grant a certificate.”
The Obama appointee wrote that Shockley’s case “exemplifies the problems” with the approach taken by the St. Louis-based circuit in his case. He was convicted of killing a police officer after the prosecution argued he committed the crime because the officer was investigating his role in a drunken-driving incident that resulted in the death of Shockley’s sister-in-law’s fiancé.
During jury selection, a potential juror said he had written and self-published a book, but Shockley’s lawyer didn’t follow up on what it was about. He became the jury foreperson.
That unexplored aspect of the juror’s background turned out to be important because, Sotomayor recounted, quoting a previous ruling in the litigation, the book was a “fictionalized autobiography” describing the “brutal and graphic revenge murder of a defendant who killed the protagonist’s wife in a drunken-driving accident.” The book’s protagonist was a fictionalized version of the juror who “viewed the defendant as escaping justice in the court system because the defendant received only probation following his conviction,” Sotomayor recounted. The foreperson brought the book to deliberations and handed it out to other jurors.
Yet “inexplicably,” as Sotomayor put it, Shockley’s counsel declined to take testimony from the foreperson or other jurors in support of a mistrial. “As a result, the trial court did not hear evidence regarding the foreperson’s alleged bias and misconduct or its effect on other jurors, … some of whom later indicated that they had looked through the book,” the justice wrote. She called it “difficult to see” how the defense’s approach “could fail to constitute ineffective assistance of counsel.” Nonetheless, Shockley couldn’t press his claim on appeal due to the 8th Circuit’s rejection of his certificate of appealability, even though a judge on the circuit wanted to grant him one. “Had the Court instead followed the approach taken in the Third, Fourth, Seventh, and Ninth Circuits, that error would have been avoided,” Sotomayor wrote, joined by Jackson, a Biden appointee. Again, the legal question here isn’t whether Shockley would ultimately succeed in his appeal but whether he could press it at all. The court’s refusal to settle the matter one way or the other means that the rules will continue to operate differently in different courts around the country. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
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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