Chief Justice Roberts grilled Moore's lawyer, Clifford Sloan, literally from the jump of oral argument in Moore. Note Justice Kennedy, the key swing votes in all death penalty litigation in front of SCOTUS, tried to beat Chief Justice Roberts to the punch:
JUSTICE KENNEDY: I -- I -- excuse me, Chief Justice.
CHIEF JUSTICE ROBERTS: That's a long laundry list of objections you have. Your question presented, though, focused only on one, which is that it prohibits the use of current medical standards and requires outdated medical standards. And I think several of the other points you made are not encompassed within that question presented. And maybe there are questions that should be looked at, but they don't seem to be covered by that. I mean, in what -- you mentioned the correspondence with clinical practices. Has that changed? Did Texas similarly depart from clinical practices under the old standard as it is under the new? (emphasis added).Chief Justice Roberts question hints at bait and switch tactics by Moore's lawyers to get SCOTUS review. Justice Kennedy wanted to press the same point as the Chief Justice - evidenced by his follow up question seconds later.
JUSTICE KENNEDY: I have the same question as -- as the Chief Justice. It -- it just seems to me the question presented doesn't cut to the heart of the case as you describe it. My understanding of your argument -- and again, I don't think it's wholly reflected in that question -- is that whether you use the most current or even slightly -- slightly older medical standards, there is still a conflict. Am I right about that, that that's your theory? (emphasis added).Sloan began to answer Justice Kennedy's question but was interrupted by Justice Kagan who gave Sloan a way to answer Justice Kennedy's question - that these medical standards and the Briseno factors are "flips sides of the same coin." This exchange made it obvious, at least me, that this issue is a significant bone of contention. When Sloan answered "That's exactly right, your Honor" to Justice Kagan's softball, it brought an exasperated response from the Chief Justice that only a listen to the audio from oral arguments can do justice:
CHIEF JUSTICE ROBERTS: Well, then why didn't you say that? I mean, really, the question presented talks about a comparison between current and outdated, and it seems -- it's pretty dramatic to say you can't use current standards; you're only using outdated. It's quite a different question, is -- you know, they used the Briseno standards and they shouldn't. You don't think they should have used the Briseno standards under the old medical standards, do you? (emphasis added).This may not seem like a huge deal in a vacuum. Remember though, last term Justice Alito called out the "guerrilla tactics" used by death penalty lawyers during the Glossip v. Gross lethal injection protocol oral arguments. It is not a stretch to view Chief Justice Roberts and Justice Kennedy's exchange with Sloan as amplifying upon this view. That the swing vote, Justice Kennedy, was in the middle of it is significant, especially in light of events that have transpired in the 2 weeks following the Moore oral argument.
In light of these subsequent events, Justice Breyer's side bar during his riff on the arbitrariness of classifying the ID for death penalty exclusion during the Moore oral arguments becomes more significant.
JUSTICE BREYER: There will be a bunch of easy cases. And then there are going to be cases like your client who has been on death row for 36 years. And there will be borderline cases. And the reason they're borderline is because the testing is right at the border, like an IQ test. And then you'll put weight on what's called related limitations in adaptive functioning, a matter that on its face sounds as if it's maybe easy in some cases and tough in another. All right? What is the Court supposed to do? Are we supposed to have all those hearings here? I mean, you've made very good arguments for your client. There are probably several others in the country in different states which may have different standards. And if you have some view that law in this area should be law, i.e., that it should be uniform across the country, point me to something that will tell me how a district judge should go about making this determination in borderline cases. (emphasis added).Then, on December 8, 2016 SCOTUS granted, then denied, granted and finally denied a second time, a stay of execution for Ronald Smith, whose Alabama death penalty resulted from a judicial override of a 7-5 jury recommendation of life. The denial was in the teeth of 4 votes to grant the stay, and exposed an ongoing problem at SCOTUS - 4 votes will get a cert grant, but 5 are required for a stay of sentence or judgement. The New York Times - and others - have written about disparity in treatment of Smith's applications and the grant of stay in Arthur v. Alabama. My point is different. The Moore oral argument openly displayed divisions which led to the failure of Ronald Smith to receive a stay of execution, and the later Monday massacre of December 12, 2016.
In Justice Breyer's dissent in the denial of cert in Sireci he wrote:
As I and other Justices have previously pointed out, individuals who are executed are not the 'worst of the worst,' but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race.He ends this sentence with citation to his now famous dissent in Glossip, but more significantly then quoted Justice Stevens concurring opinion in Furman v. Georgia, the 1972 case which invalidated the death penalty based on the arbitrariness of the hodgepodge of death eligible crimes then existing, and leading directly to the modern age of hodgepodge state death penalty schemes that supposedly remedied the constitutional problem.
'These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [death-eligible crimes], many just as reprehensible as these, the[se] petitioners are among a capriciously selected random handful upon who the sentence of death has in fact been imposed.' (footnote omitted)). Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016) (judge overrode jury’s recommendation of a life sentence)(this Court, by an equally divided vote, denied a stay of execution).The last parenthetical to the Smith denial of stay can only be read as a swipe at the members of SCOTUS who would not provide the fifth vote necessary for a stay of execution for Ronald Smith. This would include Justice Kennedy.
I still think Justice Kennedy will end up siding with the liberal wing on Moore. I think Breyer will concur with another extended diatribe on the arbitrariness of the death penalty. I hoped Justice Kennedy was sick and tired of states constantly having to be called to heel in their pell mell attempts to get around death penalty limitations placed on them by SCOTUS decisions. In this conjuring, Justice Kennedy opens a metaphorical can of whoop ass on the states, using Moore as the can opener.
The events of the last week make this conjuring unlikely. Instead it looks from my small town, limited perch that Justice Breyer's entreaties to Justice Kennedy have fallen on deaf ears. This would explain Justice Breyer's rhetorical question in Moore about '[having] all these hearings [at SCOTUS]" - it evokes his frustration at not persuading Justice Kennedy to bite on the bigger issue of death penalty arbitrariness.
It could be Justice Kennedy is just tired of dealing with death penalty cases to the exclusion of other Court business. If so, this bodes ill for abolitionists. Justice Kennedy IS the fifth vote in death penalty cases in the current make-up of this Court. Without him, a frontal attack on the death penalty will not occur, and a majority does not call Texas to heel on ID exclusion from the death penalty in Moore.