U.S. Supreme Court rejects its own precedent in death row decision

6 minute read

A general view of the U.S. Supreme Court building in Washington, U.S. October 13, 2021. REUTERS/Jonathan Ernst

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(Reuters) - A U.S. Supreme Court decision on Monday demonstrates its conservative justices' disregard for well-established judicial norms and longstanding legal rights, even in cases that present literal life-or-death stakes.

The court's decision on June 13 rejected a petition to reevaluate a death sentence in Andrus v. Texas, with its three liberal justices dissenting in an opinion by Justice Sonia Sotomayor.

Terence Andrus’ case began in 2008, when he shot two people during a drug-fueled carjacking attempt in the Houston area and was charged with capital murder. Andrus, who is Black, struggled with his mental health and experienced horrible trauma throughout his life. He was 20 at the time.

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The Supreme Court held in June 2020 that Texas cannot execute Andrus because he had received unconstitutionally inadequate legal representation at his trial.

Andrus’ counsel conceded his client's guilt, and told the jury the trial would boil down to the punishment phase. The lawyer didn’t counter the prosecutor’s argument during sentencing and didn’t present any of the abundant mitigating evidence about Andrus’ life to the jury, including untreated mental illness, murdered loved ones, addicted and incarcerated caregivers and physical abuse.

The Supreme Court decided 6-3 in 2020 that the Texas Court of Criminal Appeals misapplied the law when it denied Andrus’ appeal, and instructed the lower court to reevaluate the case in light of its decision.

But the Texas court ignored the Supreme Court’s ruling – essentially flouting the bedrock judicial principle that lower court judges must abide by the decisions of the highest court in the land, even when they disagree.

The Supreme Court had concluded that Andrus' lawyer overlooked "vast tranches" of "compelling mitigating evidence," and that the Texas court didn't properly assess whether that hurt his case before the jury. But, on remand, the Texas court simply disagreed (in a split decision), concluding again that the "mitigating evidence is not particularly compelling," and reaffirming its earlier decision.

And it wasn’t the first time.

The American Bar Association pointed out in an amicus brief that Andrus’ case “is the second time within the past three years that” the Court of Criminal Appeals — Texas' highest court for criminal matters — “has improperly denied relief from a death sentence” after the Supreme Court sent a case back down.

The high court had to overturn the Texas court twice for denying appeals by another Texas death row inmate, Bobby Moore, in 2017 and 2019 (Texas has executed more people than any other state since the Supreme Court allowed capital punishment to resume in 1976 after halting it four years earlier).

The Supreme Court had decided in 2017 that Moore couldn't be executed because he was intellectually disabled. But the Texas court misapplied the high court’s ruling when that case was remanded and reinstated the death sentence. Moore — who had already spent about 40 years on death row — was granted parole in 2020 after the Supreme Court repudiated the Texas court a second time, the Texas Tribune reported in June that year.

Nearly the same sequence played out in Andrus’ case. But this time, the Supreme Court decided not to intervene, effectively acquiescing to a lower court’s insubordination. The only meaningful difference in the cases is the Supreme Court's makeup: It has two new justices and has skewed even further to the political right since Justices Anthony Kennedy and Ruth Bader Ginsburg were replaced by Brett Kavanaugh and Amy Coney Barrett.

The decision to effectively allow a lower court to overrule one of the Supreme Court’s own prior decisions undermines the rule of law itself. The move lends even more credence to the popular criticism that the court has become a politicized body, ignoring its own precedent and norms in order to issue rulings that largely reflect the policy agenda of the Republican party and its ultra-conservative wing.

President Donald Trump, who appointed half of the court’s conservatives, predicted his nominees would bring back the death penalty; enhance gun rights and legal protections for law enforcement misconduct; and restrict immigration and abortion. Thus far, the court has proved Trump correct on all counts except gun rights and abortion — and it's widely expected to deliver conservative policy victories on those issues any day now.

The Supreme Court's public information office didn't immediately respond to a request for comment.

Representatives of the Fort Bend County District Attorney's Office — which prosecuted Andrus — also didn't immediately respond to my inquiries.

The difference in the new majority’s approach is clear when comparing Moore’s case with Andrus'. It becomes glaring when comparing Monday's Andrus decision with the first, issued just two years ago.

Moore’s second Supreme Court appeal was supported by the American Bar Association, American Psychological Association, and a group of prominent conservatives, including former U.S. solicitor general Kenneth Starr.

Conservative Chief Justice John Roberts even joined the liberals when the court ultimately ruled in Moore’s favor in 2019 — although he had ruled against Moore two years earlier.

Roberts noted that he still disagreed with how his liberal colleagues evaluate intellectual disability, but added that he had to abide by the majority ruling. It’s “easy to see” that the Texas court “repeated the same errors that this Court previously condemned,” Roberts wrote in a separate concurring opinion.

Just two years later, the Texas court made the same move in Andrus’ case, ignoring the Supreme Court’s instructions to reconsider how the mitigating evidence might have affected the jury.

Four judges dissented when the appeals court initially rejected the high court’s holdings. “This Court is not free to ‘re-characterize’” evidence in a manner “contrary to the United States Supreme Court's holding,” Judge David Newell wrote in June last year.

But a majority of the judges on the Texas court repeatedly described the justices' legal and factual determinations — which are binding on lower courts — “as what the Court ‘believed,’” Sotomayor pointed out in her dissent on Monday.

Again, non-partisan groups like the ABA and prominent conservatives supported Andrus’ second petition, arguing that the justices must ensure their rulings are respected and faithfully applied for our system to work.

Ignoring the Texas court’s “departure from binding authority would be inimical to" our constitutional system, Starr wrote in The Hill in December last year.

On Monday, the court’s conservatives did just that, with Roberts' apparent participation this time, and without even writing an opinion to explain their inaction.

It’s an alarming development that encourages lower courts to subvert well-established law on the simple basis that they disagree. And it shows just how far the court's new justices will go to change current law.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com