Elena Kagan Has Had Enough of Kegger King Kavanaugh's Judicial "Scorekeeping"
Last year, the Supreme Court issued a landmark decision in Ramos v. Louisiana, prohibiting non-unanimous convictions of criminal defendants. Under the Constitution, the court declared, a split jury verdict is “no verdict at all.” On Monday, however, the Court walked back this declaration. In Edwards v. Vannoy, the conservative majority held that Ramos does not apply retroactively—that is, to defendants who have already been convicted by split juries. The court then took the extraordinary step of overturning precedent that had allowed retroactive application of new decisions. No party asked the Supreme Court to reverse this precedent; the question was not briefed or argued. But Justice Brett Kavanaugh’s majority opinion reached out and grabbed it anyway, slamming the courthouse door on convicted defendants seeking the benefit of a new Supreme Court decision.
Kavanaugh’s overreach drew a sharp dissent from Justice Elena Kagan, joined by Justices Sonia Sotomayor and Stephen Breyer. But there is more to Kagan’s dissent than her usual rejoinders and witticisms. The justice also responded to Kavanaugh’s charge that she is a hypocrite, criticizing his cynical view of “judging as scorekeeping.” 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.
Edwards dashes the hopes of criminal defendants who thought they received a lifeline in Ramos. By any standard, Ramos was a momentous decision: In his opinion for the court, Justice Neil Gorsuch declared that a jury verdict does not qualify as a conviction under the Sixth Amendment unless it is unanimous. At that time, only Louisiana and Oregon still allowed split verdicts, and Ramos decision applied to defendants in both states who had not yet received a “final criminal judgment.” This group included defendants who had not yet received a trial as well as defendants contesting non-unanimous convictions on “direct appeal,” meaning they had not finished their first round of appeals. Those folks can get a new trial.
But what about the many more defendants who had previously appealed their non-unanimous convictions and failed to win relief? These individuals can only launch a “collateral appeal,” or an attack on the legality of a final conviction, to demand a new trial. Both Congress and the Supreme Court have strictly limited collateral appeals, because they prefer that “final judgments” remain final. (They are also afraid that these appeals will expose egregious injustices that undermine the integrity of countless convictions, but that’s a conversation for another day.) In 1989’s Teague v. Lane, the Supreme Court identified two types of decisions that apply retroactively on collateral review: new substantive rules (like those protecting some individual liberty) and new “watershed” rules of criminal procedure. (A quintessential example of such a “watershed” rule is the right to court-appointed counsel established in 1963’s Gideon v. Wainwright.) The question in Edwards was whether Ramos announced such a rule.
https://www.msn.com/en-us/news/opinion/elena-kagan-has-had-enough-of-brett-kavanaughs-judicial-%e2%80%9cscorekeeping%e2%80%9d/ar-BB1gQ4Rs
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