HAMMER: Roberts and Kavanaugh's Death Penalty Betrayal Again Shows Why Conservatives Never Win the Long Game on Judges

How many betrayals from Republican-nominated Supreme Court Justices will it take to finally convince conservatives that the judicial deck is systemically stacked against us in such a way that we will simply never ultimately prevail? . . .

Today, Roberts and Kavanaugh yet again demonstrated to the legal conservative movement the fallacy of putting all one’s eggs in the alluring basket of the Supreme Court.

In Moore v. Texas, released this morning, the Court summarily reversed the Texas Court of Criminal Appeals’ determination that Mr. Moore “did not have intellectual disability and consequently was eligible for the death penalty.” Summary reversal, as Ed Whelan notes at National Review’s “Bench Memos” blog, is “ordinarily reserve[d]…for situations in which a lower court has clearly failed to abide by the Court’s precedents.”

But that clear failure to abide by precedent plainly did not happen here. And the unsigned, per curiam opinion in Moore today itself suggests as much. The opinion merely states that the Texas court’s decision below “rests upon analysis too much of which too closely resembles what we previously found improper.” And, as Justice Alito’s dissent notes, “each of the errors that the majority ascribes to the state court’s decision is traceable” to the Court’s failure to provide a clear adjudicative rule in 2017, when Mr. Moore’s case was last in front of the nine robed oracles. . .

The Texas Court of Criminal Appeals’ determination had followed a previous remand from the Supreme Court in 2017 — a remand order from which, crucially, Chief Justice Roberts dissented. But today, the Chief Justice concurred with the Court’s liberal bloc in vacating the Texas Court of Criminal Appeals’ determination that Mr. Moore is eligible for the death penalty. Put simply, the Chief Justice completely flipped his stance in the same case, from two years earlier, in order to side with the Court’s liberals.

Also significant: Justice Kavanaugh was on the liberals' side in this case, too. His name was notably absent from the Alito/Thomas/Gorsuch dissent. 10/10

— Steven Mazie (@stevenmazie) February 19, 2019

On #SCOTUS's decision in Moore v. Texas:

It usually takes six Justices to agree to a "summary reversal." Given the dissent, that means that both the Chief Justice (who noted his vote) & Justice Kavanaugh (who didn't) voted to decide the case summarily…https://t.co/jyfEK8VxIF

— Steve Vladeck (@steve_vladeck) February 19, 2019