In addition to the Sons of Confederate Veterans license-plate case, there were two other 5-4 rulings today.
In Brumfield v. Cain, the liberals and Justice Kennedy combined to rule, in an opinion written by Justice Sotomayor, that a habeas petitioner had satisfied the threshold showing required under the federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) that a state court’s rejection of this Eighth Amendment claim was “based on an unreasonable determination of the facts.” Justice Thomas’s dissent powerfully argues that the majority misapplied AEDPA.
Thomas’s dissent is also noteworthy for his criticism of the majority’s “disheartening” “disregard for the human cost of its decision”—and for his extended contrast between the life of the convicted murderer and the life of his victim’s son, former football star Warrick Dunn. The Chief Justice and Justice Alito hailed the Dunn story as “inspiring” but declined to join that part of his opinion, in order to avoid “suggest[ing] that it is essential to the legal analysis in the case.” (I suspect that conservatives more generally would divide on what is and is not proper to include in an opinion.)
Davis v. Ayala was a 5-4 conservative victory. In an opinion by Justice Alito, the Court ruled that any possible error in the procedure governing the prosecutor’s use of peremptory challenges to jurors was harmless.
The ruling may be most notable for the concurring opinions of Justice Kennedy and Justice Thomas. Acknowledging that he is discussing a “factual circumstance” that has “no direct bearing on (or even, it would seem, even the remotest connection to) “the precise legal questions presented by the case,” Kennedy spends four pages telegraphing that he is eager to rule that long-term solitary confinement violates the Eighth Amendment. Thomas’s pungent response:
[T]he accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest. And, given that his victims were all 31 years of age or under, Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.
For what it’s worth, Davis is Alito’s second opinion from the February calendar. There remain only three rulings still to be issued from that sitting, and there are still four justices who haven’t written a majority opinion for that month. So I wonder if that indicates that Justice Sotomayor, who wrote the dissenting opinion in Davis, lost a post-argument majority. (But I defer to the judgment of closer Court-watchers.)