Once again, Chief Justice Roberts has sided against his more conservative colleagues in deciding a case, this time concerning whether or not a death-row inmate is eligible to be executed or, due to mental deficiencies, not eligible. Here is The New York Times report, and here is the opinion, including the dissent by Alito, joined by Thomas and Gorsuch, while Kavanaugh’s position is unknown.
The case revolves around a factual finding, which is an unusual facet for the Court to decide upon. In fact, that appears to be the basis of the dissent:
Having concluded that the Court of Criminal Appeals failed to apply the standard allegedly set out in Moore, the Court today takes it upon itself to correct these factual findings and reverse the judgment.* This is not our role. “We do not grant a certiorari to review evidence and discuss specific facts.” United States v. Johnston, 268 U. S. 220, 227 (1925); see also Salazar-Limon v. Houston, 581 U. S. ___, ___ (2017) (ALITO, J., concurring in denial of certiorari) (slip op., at 2) (“[W]e rarely grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case”). If the Court is convinced that the Court of Criminal Appeals made a legal error, it should vacate the judgment below, pronounce the standard that we failed to provide in Moore, and remand for the state court to apply that standard. The Court’s decision, instead, to issue a summary reversal belies our role as “a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).
But Roberts wrote a concurrence to the majority:
When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia, 536 U. S. 304 (2002), lacked clarity. Moore v. Texas, 581 U. S. ___, ___–___ (2017) (slip op., at 10–11). It still does. But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here. On remand, the court repeated the same errors that this Court previously condemned—if not quite in haec verba, certainly in substance. The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S. W. 3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits. That did not pass muster under this Court’s analysis last time. It still doesn’t. For those reasons, I join the Court’s opinion reversing the judgment below.
Frustration with a bullheaded Texas court? Or more legacy work? Probably the former.
