Justice Brett Kavanaugh is a Republican. He served in a Republican White House, typically votes with the Court’s other Republicans, and even sometimes sides with President Donald Trump in major cases that divide the Republican Party. He’s not the sort of person you’d expect to carry a torch for a liberal cause for nearly four full decades.
But, well, he did. In Kavanaugh’s majority opinion in Pitchford v. Cain, which was handed down on Thursday, the justice more or less implemented a proposal for how to prevent racism from infecting jury selection that he first proposed in a 1989 piece that he published when he was still a law student.
To be clear, Kavanaugh’s Pitchford opinion doesn’t really break much new ground. It involves a straightforward violation of Batson v. Kentucky (1986), the Supreme Court’s most important precedent governing race in jury selection, and rules in favor of the person on death row who brought this fairly clear-cut violation to the Supreme Court’s attention.
Still, Pitchford was a 5-4 decision, with four of Kavanaugh’s fellow Republicans joining a dissent by Justice Neil Gorsuch. So the decision could have easily come down the other way if one of the Republican justices hadn’t developed a liberal approach to Batson before he started his legal career. Sometimes, even Supreme Court justices — arguably the most highly vetted political appointees in the entire federal government — contain multitudes.
Again, Pitchford is a fairly easy case. In a less ideological Supreme Court, the incarcerated person at the heart of this case might have won unanimously. But the decision does suggest that left-leaning advocates can sometimes prevail in this Court by appealing to the idiosyncratic views of some of the Republican justices.
Kavanaugh’s long-standing approach to race in jury selection, explained
In 1989, Kavanaugh published a “note” in the Yale Law Journal. Notes are student-authored works of legal scholarship, which often examine an important recent legal development. High-achieving law students frequently choose to write these notes because it gives them a published exemplar of their own legal writing skills that they can share with potential employers.
The surprising twist is that in his 1989 note, Kavanaugh — who, of course, would go on to become one of the most powerful Republicans in the United States — chose to advocate for a cause that is ordinarily associated with liberals. Published three years after the Supreme Court handed down Batson, Kavanaugh’s note, which is titled “Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings,” argued that the Court’s recent decision protecting against racism in jury selection should be read to include certain procedural protections for criminal defendants.
In criminal trials, both the prosecution and the defense often get a limited number of “peremptory challenges,” which they can use to remove a potential juror from the jury pool for virtually any reason. These peremptory strikes may be used to remove a juror because the prosecutor doesn’t like the juror’s haircut, because the defense counsel thinks a juror looked at their client suspiciously, or because counsel doesn’t like having jurors whose name begins with the letter “M.”
But the Constitution prohibits prosecutors from removing a juror because of that juror’s race.
As Kavanaugh explains in his Pitchford opinion, Batson sets up a three-step process to determine whether prosecutors did, in fact, remove a juror for impermissible racial reasons. After the defense counsel objects to the removal of a particular juror or group of jurors (step one), the prosecutor typically must give a race-neutral explanation for why they wanted the juror removed (step two). At step three, Kavanaugh writes, “defense counsel has an opportunity to rebut the prosecutor’s race-neutral reason as pretextual,” and then the judge has to decide who is telling the truth.
Kavanaugh’s 1989 note argues that courts must ensure that this third step is complied with; he wrote at the time that “the defense should have an opportunity to rebut the prosecutor’s reasons before the trial judge decides whether to allow the prosecutor’s peremptories.” His opinion in Pitchford makes a very similar argument.
In Pitchford, prosecutors in a Mississippi murder case used their peremptory challenges to remove four of five potential Black jurors from defendant Terry Pitchford’s jury pool. Defense counsel objected on Batson grounds, and the prosecutor gave race-neutral explanations for targeting these jurors. (The prosecution claimed that one juror was removed because they arrived late to court, two because they had brothers convicted of violent offenses, and one because he, like the defendant, was a young father.)
But the trial judge never gave defense counsel an opportunity to rebut these explanations. The judge simply deemed the prosecutor’s explanations acceptable and moved on.
This, Kavanaugh writes in Pitchford, is not allowed. In a sentence that mirrors the argument he made in 1989, the justice writes that “after a prosecutor asserts race-neutral reasons for a peremptory strike, the defense counsel must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons—that is, the reasons were pretextual.”
So how did this easy case produce a four-justice dissent?
To be clear, it’s not exactly a stretch for Kavanaugh to argue that, when Batson said that courts must use a three-step process to resolve jury discrimination claims, all three steps are mandatory. At most, Pitchford makes explicit something that was already implicit in US law.
But Pitchford was complicated by a federal law, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that makes it difficult for convicted offenders 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 state courts handed down a decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
Given this high bar placed in front of people who wish to challenge state-level convictions or sentences, a federal judge who wants to leave the state court’s decision in place will almost always be able to find a way to do so. And Gorsuch’s opinion does just that.
The dissent’s primary argument is that Pitchford waived his Batson argument because, while his lawyers raised it in the trial court, they did not provide enough detail about how, specifically, the trial judge violated Batson when they raised this objection. As a general rule, lawyers may not 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, defense counsel raised their Batson argument multiple times at trial. And, after one of these objections, the trial judge “explicitly assured Pitchford’s counsel that the Batson objection was preserved.” So it would have been odd — and could have potentially antagonized the judge — if defense counsel had elaborated further on their Batson argument after the judge effectively told them to drop the issue and take it up in the appeals courts.
But the fact remains that Pitchford barely prevailed in the Supreme Court. And, if not for the fact that Kavanaugh appears to have developed the view that all three prongs of Batson’s process are mandatory in law school, this case would have likely come out the other way.
Liberal victories aren’t exactly common in this Court, but they also aren’t so rare that they are unimaginable. In this case, one of the justices appears to have formed an opinion on a politically contentious issue before he fully embraced the broader worldview that he needed to have in order to score political appointments in a Republican administration. And that means that, at least in cases involving jury discrimination, criminal defense lawyers will sometimes find a sympathetic bench in the Supreme Court.
