Court sends case of Georgia death-row inmate back to lower courts over Thomas dissent

This morning the Supreme Court issued orders from last Friday’s conference. The justices did not add any new cases to their merits docket, but they did issue a summary ruling in the case of a Georgia death-row inmate and called for the views of the U.S. solicitor general in three cases.

The summary decision came in the case of Keith Tharpe, who in 1991 was sentenced to death for the murder of his sister-in-law. Seven years later, Tharpe’s attorneys obtained an affidavit from one of the jurors who had convicted him; among other things, the juror used racial slurs to refer to black people, and he told the attorneys that he had “wondered if black people even have souls.” But the state post-conviction court would not consider any evidence of potential racial bias, and a federal district court also declined to consider that evidence. Tharpe tried to have the district court’s ruling reopened and reconsidered, but the U.S. Court of Appeals for the 11th Circuit rejected his request. Today the Supreme Court threw Tharpe a lifeline by sending his case back to the lower courts.

Tharpe was originally scheduled to die on September 26, but the justices – over a dissent from Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – blocked his execution to give them time to consider his appeal fully. In an unsigned opinion that runs just over two pages, the court acknowledged today that the state court’s conclusion – that the juror’s “vote to impose the death penalty was not based on Tharpe’s race” – was “binding on federal courts, including this Court, in the absence of clear and convincing evidence to the contrary.” But, the court continued, the affidavit (which the court described as “remarkable”) nonetheless “presents a strong factual basis for the argument that Tharpe’s race affected” the juror’s vote for the death penalty. “At the very least,” the court reasoned, “jurists of reason could debate whether Tharpe has shown by clear and convincing evidence that the state court’s factual determination was wrong.”

The court sent the case back to the lower courts for them to determine whether Tharpe should receive permission to appeal the district court’s denial of his motion to reopen his case. At the same time, the justices suggested that he could face an uphill battle, noting that the federal courts are only allowed to reopen a case like Tharpe’s in “extraordinary circumstances” – “a high bar,” the justices wrote. But, at a minimum, the justices signaled, the 11th Circuit’s decision (and, by extension, Tharpe’s death sentence) “should not have rested on the ground that it was indisputable among reasonable jurists that” the juror’s views “did not prejudice Tharpe.”

Thomas, joined again by Alito and Gorsuch, dissented. In a 13-page opinion, Thomas accused his colleagues of “bending the rules” to show their “concern for racial justice.” “The Court must be disturbed by the racist rhetoric in” the juror’s affidavit and “must want to do something about it,” Thomas suggested. But, he complained, today’s ruling only prolongs the inevitable by sending Tharpe’s case back to the lower courts for a “useless do-over.” And in doing so, he continued, the court delayed justice for Jaquelin Freeman, “the black woman who was brutally murdered by Tharpe 27 years ago.” “Because this Court should not be in the business of ceremonial handwringing,” Thomas lamented, “I respectfully dissent.”

The justices asked the U.S. solicitor general to file briefs expressing the views of the United States in three cases: Dawson v. Steager, a tax case; Herrera v. Wyoming, a case involving the validity of federal treaty rights allowing Indian tribes to hunt on U.S. lands; and Fourth Estate Public Benefit Corp. v. Wall-Street.com, a copyright case. There is no deadline for the solicitor general to respond to this request, but he is not likely to do so before the late spring.

With all but the March and April calendars now released, the justices currently have only nine merits cases that have not yet been scheduled for argument. Although they did not add any new cases to their docket today, my colleague Mark Walsh has reminded me that after last year’s January 13 conference, they filled out their October Term 2016 significantly by granting 16 new cases, for a total of 13 hours of oral argument time. With this data point in mind, we’ll be waiting for the results of this Friday’s conference with bated breath.

This post was originally published at Howe on the Court.