Because all three decisions dealt with an idiosyncratic provision of the Texas death penalty law that is no longer in effect, their practical significance may be limited to requiring the resentencing of several dozen inmates on that state’s death row.
But the dissenting opinion that Chief Justice John G. Roberts Jr. filed in two of the cases elevated their importance, indicating by its bitter tone that a serious debate over methodology had divided the justices.
“It is a familiar adage that history is written by the victors,” the chief justice wrote in complaining of the majority’s description of the court’s recent death penalty precedents. He accused the majority of using an “utterly revisionist” view of those precedents to justify the conclusion that the two Texas inmates were entitled to writs of habeas corpus.
With at least two months to go before the current term ends, the court appears to have entered a particularly contentious period. Of the 10 decisions handed down so far this month, eight were decided by a majority of just five justices. (Underscoring his position at the center of the court, Justice Kennedy was in the majority in all 10, while Chief Justice Roberts was in the majority in five.)
The three decisions on Wednesday provided the latest chapter in the Supreme Court’s dialogue with the two lower courts, the Texas Court of Criminal Appeals and the United States Court of Appeals for the Fifth Circuit, which handle appeals from the Texas death row, the country’s most active. As an exasperated Supreme Court majority has seen it, these courts have found repeated and unpersuasive reasons to evade the Supreme Court’s evolving death penalty jurisprudence.
It was that jurisprudence that was the underlying focus of the dispute among the justices. A 1996 federal law, the Antiterrorism and Effective Death Penalty Act, raised the bar against federal court review of state prisoners’ petitions for writs of habeas corpus.
Such a writ, which is a declaration that a prisoner’s conviction or sentence is unconstitutional, can be granted under the 1996 law only if the state court decision under review was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.”
In two of the Texas cases the court decided Wednesday, the majority held, in opinions by Justice John Paul Stevens, that this was exactly what had occurred when the Texas Court of Criminal Appeals found that the two inmates, Ted Cole and Brent Brewer, had properly been sentenced to death.
Justice Stevens said that by the time the state appeals court upheld the death sentences for the two convicted murderers, in decisions in 1999 and 2001, the Supreme Court had made it clear that the Texas jury instructions failed to ensure that jurors could give full consideration to a defendant’s mitigating evidence.
Consequently, Justice Stevens said, the men were entitled to habeas corpus and the Fifth Circuit should not have refused it. In addition to Justice Kennedy, Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined the two opinions, Abdul-Kabir v. Quarterman, No. 05-11284, and Brewer v. Quarterman, No. 05-11287.
Chief Justice Roberts objected that the court had not been at all clear on the validity of the Texas jury instructions, the subject of five previous decisions. “We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to ‘clearly established’ federal law,” he said. He described the precedents as “a dog’s breakfast of divided, conflicting, and ever-changing analyses.”
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. signed the dissent.
In the years since the 1996 law took effect, the court has been extremely reluctant to find error on the part of state courts of the type that would permit inmates to gain access to federal court. It remains to be seen whether the rulings on Wednesday will extend beyond the court’s sustained annoyance with the Fifth Circuit to signify a more expansive view toward habeas corpus, a prospect that perhaps explains the vigor of the chief justice’s dissent.
Justice Kennedy wrote the majority opinion in the third case, Smith v.
Texas, No. 05-11304, and Justice Alito wrote the dissent. The question was
whether the Texas Court of Criminal Appeals had properly applied a 2004
Supreme Court ruling that ordered reconsideration of LaRoyce Smith’s death
sentence. The state court invoked a Texas procedural rule to reinstate the
death sentence. That was an error and “it appears that Smith is entitled to
relief,” Justice Kennedy said.