Last year, on remand from the Supreme Court’s 5-3 ruling in Moore v. Texas (2017), the Texas Court of Criminal Appeals (which, in Texas’s bifurcated court system, is its highest state court for criminal matters) ruled that Bobby James Moore did not have an intellectual disability that rendered him ineligible for the death penalty. In a per curiam opinion today, the Supreme Court summarily reversed the Texas Court of Criminal Appeals and held that Moore is not eligible for the death penalty. Chief Justice Roberts wrote a one-paragraph concurring opinion, and Justice Alito, joined by Justice Thomas and Justice Gorsuch, dissented.
A few observations:
1. For the reasons spelled out by Justice Alito in his dissent, I find this a peculiar case for a summary reversal (a reversal, that is, without inviting briefs on the merits and oral argument).
The Court ordinarily reserves summary reversal for situations in which a lower court has clearly failed to abide by the Court’s precedents. But the per curiam opinion itself strongly suggests that this standard wasn’t met: the opinion concludes merely that the Texas court’s determination “rests upon analysis too much of which too closely resembles what we previously found improper.” As Alito argues, “each of the errors that the majority ascribes to the state court’s decision is traceable to Moore’s failure to provide a clear rule” in 2017.
Further, instead of clarifying what the proper legal standard is, the per curiam majority simply engages in its own factfinding. Again, as Alito explains, that is not how the Court typically understands its role.
2. I find the Chief’s concurring opinion especially troubling. Two weeks ago, in pondering the Chief’s vote to block Louisiana’s abortion law from taking effect, I stated that “I don’t think that the Chief’s vote signals anything about how he will rule on the merits of the case” and that “I would be very surprised if he regards the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt (from which he dissented) as sound precedent.” But today the Chief treats as governing precedent the Court’s 2017 decision in Moore, in which he wrote the dissent (for himself, Thomas, and Alito).
So I now have to wonder whether my take two weeks ago was wrong. If so, there could be real trouble ahead.
3. Justice Kavanaugh’s evident* joinder in the per curiam opinion is also surprising. He of course wasn’t on the Court for the 2017 decision in Moore. (Neither was Gorsuch.) But that fact provides little if any reason to treat Moore as sound precedent. If anything, it ought to counsel against deciding the matter summarily.
4. Why not instead have allowed the four liberal justices to grant full review in this case? That way, the Court could have reconsidered whether the 2017 ruling in Moore was correct, and, if the Court determined that it was, it could have provided the much-needed clarity that the Chief, in his concurrence today, says is still lacking.
* I say “evident” only because the per curiam opinion does not list the justices who joined it. It’s theoretically possible, I suppose, that Kavanaugh dissented but chose not to register his dissent, but that would be inconsistent with my understanding of the usual practice.