Judge Brett Kavanaugh is a Republican. He served in the Republican House, usually voting with other Republicans on the Court, and sometimes even on the side of President Donald Trump in major cases dividing the Republican Party. He is not the kind of person you would expect to carry the torch for the cause of freedom for almost four full decades.
But, well, he did. In Kavanaugh’s majority opinion at Pitchford vs. Cainwhich was released Thursday, the justice more or less implemented a proposal on how to prevent racism from infecting jury selection that he it was first suggested in a 1989 piece which he published while still a law student.
To be clear, Kavanaugh’s Pitchford comments do not break new ground. It involves a direct violation of Batson vs. Kentucky (1986), the Supreme Court’s most important precedent governing races in judicial nominations, and the rules favoring a person on death row who brought this violation clearly to the Supreme Court.
still, Pitchford it was a 5-4 decision, with four of Kavanaugh’s Republicans joining Justice Neil Gorsuch’s dissent. So the decision could easily have been made the other way around if one of the Republican justices hadn’t created a liberal path. Batson before starting his legal career. Sometimes, even Supreme Court justices — arguably the most vetted political appointees in the entire federal government — are crowded.
Again, Pitchford it is a very simple case. In a less ideological Supreme Court, the prisoner at the heart of this case might have won unanimously. But the ruling suggests that left-wing lawyers can sometimes win on this Court by appealing against the absurd views of some Republican justices.
Kavanaugh’s long-running approach to jury selection, he explained
In 1989, Kavanaugh published a “note” in the Yale Law Journal. Notes are student-authored works of legal scholarship, which often examine important recent legal developments. High-achieving law students often choose to write these notes because it gives them a published example of their legal writing skills that they can share with potential employers.
The irony is that in his 1989 letter, Kavanaugh – who, of course, would go on to become one of the most powerful Republicans in the United States – chose to defend a cause usually associated with liberals. Published three years after the Supreme Court filed BatsonKavanaugh’s statement, entitled “Presence of Protection and Participation: A Minimum Order for Batson vs. Kentucky Hearings,” argued that the Court’s recent decision protecting against racial discrimination in jury selection should be read to include certain procedural protections for criminal defendants.
In criminal cases, both the prosecution and the defense often get a small number of “life challenges,” which they can use to remove a member from the jury for any reason. These detective warnings can be used to remove a juror because the prosecutor doesn’t like the juror’s haircut, because the defense attorney thinks the juror looked suspiciously at his client, or because the attorney doesn’t like having a juror whose name begins with the letter “M.”
But the Constitution prohibits prosecutors from removing a juror because of the juror’s color.
As Kavanaugh explains in his Pitchford comments, Batson establishes a three-step process to determine whether prosecutors did, in fact, remove a juror on impermissible racial grounds. After the defense attorney refuses to remove a particular juror or group of jurors (step one), the prosecutor usually must provide an impartial explanation as to why they wanted the juror removed (step two). In the third step, Kavanaugh writes, “the defense attorney has the opportunity to rebut the prosecutor’s reason for neutrality as an excuse,” then the judge decides who is telling the truth.
Kavanaugh’s 1989 message says that the court must ensure that this third step is followed; he wrote at the time that “the defense should have the opportunity to rebut the prosecutor’s reasons before the trial judge decides whether to grant the prosecutor’s direction.” His comments in Pitchford makes a very similar point.
In Pitchfordprosecutors in a Mississippi murder trial used their peremptory challenges to remove four of five potential Black jurors from the jury pool for defendant Terry Pitchford. Defense counsel objected Batson grounds, and the prosecutor provided a neutral explanation for targeting these judges. (The prosecution argued that one juror was removed because they were late to court, two because they had brothers convicted of violent crimes, and one because he, like the defendant, was a young father.)
But the trial judge never gave defense counsel a chance to rebut this explanation. The judge simply found the prosecutor’s explanation acceptable and continued.
This, Kavanaugh writes Pitchfordit is not allowed. In a sentence that reflects the argument he made in 1989, the judge writes that “after the prosecutor claimed non-tribal reasons for the arbitrary strike, the defense attorney. they must at least have the opportunity to argue that the alleged race bias was not the real reason-that is, the reasons were pretextual.”
So how did this simple case lead to the opposition of the four rights?
To be clear, it’s not quite a stretch for Kavanaugh to argue that, when Batson He said that courts must use a three-step process to resolve claims of jury discrimination, all three steps are mandatory. At the very least, Pitchford it makes clear something that was already clear in US law.
But Pitchford was complicated by federal law, the Anti-Terrorism and Death Penalty Act of 1996 (AEDPA), that makes it difficult for convicted felons to challenge their convictions or sentences in federal court if they were first tried in state court. To prevail in such a federal challenge, Pitchford must show that the state courts rendered a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court” or “resulted from an unreasonable determination of the facts based on the evidence presented in the State court case.”
Given this high bar placed before people seeking to challenge state-level judgments or convictions, a federal judge who wants to vacate a state court decision will almost always be able to find a way to do so. And Gorsuch’s comments do.
The main argument of the opponents is that Pitchford removed his Batson argument because, when his lawyers explained it in the trial court, they did not provide enough information about how, specifically, the judge hearing the case violated it. Batson when they raised this objection. As a general rule, attorneys cannot raise an argument on appeal unless they also raised that argument in the trial court.
That’s not a very good argument, because, as Kavanaugh explains, the defense attorney raised theirs Batson moved several times in the case. And, after one of these objections, the trial judge “clearly assured Pitchford’s counsel that Batson objection was sustained.” So it would have been unusual — and likely to have antagonized the judge — if defense counsel had elaborated on them. Batson arguments after the judge told them to drop the matter and take it to the appeals courts.
But the fact remains that Pitchford narrowly won in the Supreme Court. And, if not for the fact that Kavanaugh seems to have an opinion that all three corners of BatsonDue process is mandatory in law school, this case could have gone any other way.
Liberal victories are not uncommon in this Court, but they are also not so rare as to be unthinkable. In that case, one of the justices appears to be voicing his opinion on a controversial political issue before fully embracing the broad worldview he needed to have in order to secure a political nomination in the Republican administration. And that means that, at least in cases involving judicial bias, criminal defense lawyers will sometimes find a sympathetic bench in the Supreme Court.
