Sunday, May 23, 2021

Kavanaugh Plays Rough With Precedents

             As Supreme Court nominee two years ago, Brett Kavanaugh described the landmark abortion rights decision Roe v. Wade as a precedent entitled to respect under the doctrine known, in Latin phrasing, as stare decisis.

            In a seven-minute colloquy with California’s Democratic senator Dianne Feinstein, Kavanaugh resisted her efforts to get him to go further. Feinstein, stoutly defending Roe v. Wade, worried aloud about Supreme Court nominees who promise in confirmation hearings to follow stare decisis, but then “they get confirmed and they don’t.”

Kavanaugh undoubtedly thinks of himself as a judicious expert on the “law of judicial precedent,” as one of a dozen judge contributors to a scholarly 924-page treatise on the subject compiled by the noted legal writing expert Bryan Garner.

Within the past month, however, Kavanaugh has been less than judicious in leading the lopsidedly conservative Supreme Court in under-the-radar manhandling of two significant precedents that gave prisoners legal avenues for challenging convictions or sentences imposed years ago under laws and procedures now recognized under those precedents as unconstitutional.

In the first of those decisions, Kavanaugh led an ideologically divided 6-3 Court in Jones v. Mississippi (April 22) to gut two precedents from 2012 and 2016 protecting juvenile offenders from life-without-parole (LWOP) sentences. In the first of those earlier decisions, the Court ruled that a juvenile offender could not be sentenced to life without parole unless he was “permanently incorrigible.” In the second decision, the Court held in Montgomery v. Louisiana (2016) that that ruling applied retroactively to juvenile offenders challenging LWOP sentences imposed before the Court’s ruling.

In Jones, Kavanaugh led the Court in concluding that the judge who had earlier sentenced Jones to life without parole under the then-applicable Mississippi law acted properly in imposing the same sentence without finding that Jones was “permanently incorrigible,” the standard set out in the Supreme Court precedent.

Kavanaugh again led the Court last week [May 19] in another ideologically divided 6-3 decision, Edwards v. Vannoy (May 19), that threw a precedent under the stare decisis bus. The ruling in Edwards blocks prisoners convicted by non-unanimous juries in Louisiana or Oregon from taking advantage of last year’s decision in Ramos v. Louisiana (2020) to require jury unanimity in criminal cases nationwide.

Kavanaugh paid scant respect to precedents in both of this term’s new decisions. To the contrary, Kavanaugh left the juvenile sentencing precedents all but toothless in protecting juvenile offenders from the kind of severe sentence rejected by the Court’s precedents.

In the jury-unanimity decision, Kavanaugh denied hundreds of prisoners serving sentences in Louisiana or Oregon based on non-unanimous jury verdicts any legal recourse to overturn convictions now recognized as unconstitutional under the new precedent.

To reach that result in Edwards, Kavanaugh had to flatly overrule a precedent, Teague v. Lane (1989), that ostensibly allowed retroactive application of a new Supreme Court ruling in federal habeas corpus cases if the new ruling amounted to a “watershed” rule of criminal procedure.

In his opinion for the Court in Ramos, Justice Neil Gorsuch in fact described the decision as “fundamental.” In a concurring opinion in Ramos, however, Kavanaugh anticipated the retroactivity issue by describing the new rule as less than the kind of “watershed” decision to be applied retroactively under Teague v. Lane.

In the new decision, Kavanaugh avoided the semantic issue by overruling Teague v. Lane altogether on the ground that the Court had never found a new criminal procedure decision to qualify as a watershed ruling to be applied retroactively.

Writing for three liberal justices in dissent in Edwards, Kagan argued that Ramos clearly qualifies as a “watershed” decision to be applied retroactively. “If you were scanning a thesaurus for a single word to describe the decision,” Kagan wrote, “you would stop when you came to ‘watershed.’”

Kagan pointedly noted Kavanaugh’s sleight-of-hand to skirt the issue. “The majority cannot (and indeed does not) deny, given all Ramos said, that the jury unanimity requirement fits to a tee Teague’s description of a watershed procedural rule,” she wrote. “Nor can the majority explain its result by relying on precedent. . . . Search high and low the settled law of retroactivity, and the majority still has no reason to deny Ramos watershed status.”

Kagan also noted that Kavanaugh was less than careful in jettisoning Teague v. Lane despite the pains he took in Ramos to justify his vote for overruling the earlier precedent that had allowed non-unanimous verdicts in criminal cases,

“In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis,” Kagan wrote. “It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the ‘special justification’ our law demands.”

Together, Kavanaugh’s roles in Jones and Edwards suggest that he will need little persuasion to join in overruling Roe v. Wade if his fellow conservatives are determined to do so next term in the Mississippi case that the justices have teed up for argument in the fall. Feinstein’s warning two years ago about Supreme Court nominees who break their promises to follow precedent seems all the more prescient with that case now on the Court’s docket.

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