Elena Kagan Has Had Enough of Brett Kavanaugh's Judicial "Scorekeeping"
The Supreme Court’s savviest liberal justice is done pulling punches.
BY MARK JOSEPH STERN
MAY 17, 20215:15 PM
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Last year, the Supreme Court issued a landmark decision in Ramos v. Louisiana, prohibiting nonunanimous 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 the 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 nonunanimous convictions on “direct appeal,” meaning they had not finished their first round of appeals. Those folks can get a new trial.
https://slate.com/news-and-politics/2021/05/edwards-vannoy-kagan-kavanaugh-scorekeeping.html
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