Whenever writing about the SCOTUS and intra-court battles, one has to provide some context.  Late last year, the Court handed down an earth-shattering decision in Ramos v. Louisiana, prohibiting nonunanimous convictions of criminal defendants. As shocking as it might seem to some, there were two states that allowed a criminal to be convicted without a unanimous verdict, one or two dissenters didn’t help the Defendant. (Louisiana and Oregon) The Court said that a non-unanimous verdict is no verdict at all under the U.S. Constitution.

Thousands of unconstitutionally convicted people incarcerated in Oregon and Louisiana, many of them Black Americans (Which jurors are often on the other side? The one or two that are voting innocent? Often the only two Black Americans on the jury? Not always, often.), these incarcerated people believed they would soon be getting a new trial.

But on Monday, the Court shattered their dreams, and most will continue their sentences despite being imprisoned on what is now an unconstitutional verdict. In Edwards v. Vannoy, the majority ruled that Ramos does not apply retroactively. It is an extraordinary step, almost unheard of step. It overturned decades of precedent that had allowed the retroactive application of new criminal constitutional doctrine when that doctrine has such widespread application that it’s called a “watershed” case. If a case is that unconstitutional, it was always unconstitutional, it just hadn’t been ruled on yet, or so the thinking went.

It gets worse. Kavanaugh wrote the opinion. Not one party to the case actually asked that the rule be abolished (it wasn’t a necessary component of the appeal.) The issue wasn’t briefed by the parties, nor was it argued by the parties. The Court is loathed to “overreach” in opinions. The entire point of case law is to rule on the exact issue before it and let it “grow” from there. In those very limited circumstances where the Court believes it must overrule precedent as part of its ruling, it almost always (always?) sends out notice to the parties, asking them to re-brief the issue; “Should XYZ v. ABC overrule DEF v. UVW?” And the parties then brief the issue. The Court will often set that sole question for reargument.

Kavanaugh didn’t need any of that. He reached the prison gate, slammed it shut, and put the key in his pocket. In every case, the most senior Justice on each side will pick the person to write the case, in this instance, Roberts chose Kavanaugh, and Bryer chose Kagan. The ruling and the dissent often poke at the holes in each other’s arguments. Kagan and Kavanaugh are now poking spears to the chest.

We will summarize Slate’s version:

Kavanaugh wrote that Kagan was being a “hypocrite.” Justices generally don’t call other justices hypocrites, they say they’re being “inconsistent” (Other than Scalia’s entertaining opinions, the SCOTUS’s dry writing would shock people. Kagan responded forcefully, criticizing Kavanaugh’s cynical view of “judging as scorekeeping.” That is a roundhouse to the jaw. She’s accusing him of deciding the case (and more, in this particular case) without regard to the actual issues, more just keeping track of winners and losers.

As Slate says: It appears that Kagan is losing patience with Kavanaugh’s efforts to “insulate” himself from criticism with rhetoric that obfuscates the cruel consequences of his decisions.

Kagan then went on to bury Kavanaugh’s one page declaration that cases that no case qualifies as “watershed” – meaning an entirely new framework for convictions (like the right to counsel). Kagan went medieval in court terms:

The justice went on to explain why Ramos fits perfectly within Teague, and why that precedent is worth preserving. “The majority gives only the sketchiest of reasons for reversing Teague’s watershed exception,” Kagan wrote. “Seldom has this court so casually, so off-handedly, tossed aside precedent.” And it did so even though “no one here asked us to.” The result is fundamentally unfair: Thousands of people will remain behind bars, some for life, because they happened to exhaust their direct appeals before Ramos came down.

That is not done in SCOTUS opinions. That is deeply personal. “Casual,” “Off-handed,” and seems to be Kavanaugh’s own agenda, “No one asked us to.” It is “fundamentally unfair.” It is some of the strongest language to come out directed at one person in a long time. (Yes, the majority signed-off, so it’s “technically” written to the majority, but it’s directed at how it was written, “casually,” and “off-handed.”

Unbelievably, Kavanaugh pointed to Kagan’s ruling in an entirely separate case, saying that convicted criminals are far better off with the two rulings today than had Kagan been in the majority in both cases (In one she applied precedent, as she tends to do). In other words, Kav tells Kagan to settle down, he left people better off than even she would have had both cases come down against her. And that did it. In a footnote Kagan called him out, big:

It treats judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. I see the matter differently. Judges should take cases one at a time, and do their best in each to apply the relevant legal rules. And when judges err, others should point out where they went astray. No one gets to bank capital for future cases; no one’s past decisions insulate them from criticism. The focus always is, or should be, getting the case before us right.

That is fcking brutal. Kagan just said that Kav worries more about “classes” of parties rather than the case itself, “scorekeeping” she put it, “banking away capital” so that he can act all nice next time. But as Kagan noted, the system only works when judges rule on the case in front of it, period. She basically said Kavanaugh is acting less like a judge and more like a political animal, pleasing classes of constituents, “I did this for them, and you did…” instead of doing what a judge does, make a ruling on the facts in front of them and prior law.

She is sick of Kavanaugh and it has only been two years. Wait till things really heat up when another case with a lot of precedent, Mississippi’s “heartbeat” abortion case hits the court next year.

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Peace, y’all
Jason
[email protected] and on Twitter @JasonMiciak