A Death Row Case That Divided Kavanaugh and Gorsuch

On the surface, Justices Neil Gorsuch and Brett Kavanaugh share much in common. They are both judicial conservatives, both self-professed originalists, both former federal appellate court judges with respected records, and both were appointed to the U.S. Supreme Court by the same president.

Yet there are certain legal issues that have brought out notable differences between them. The Supreme Court’s recent 5–4 decision in Pitchford v. Cain offers a fascinating case in point.

Pitchford v. Cain centered on the reach of a 1986 SCOTUS precedent called Batson v. Kentucky. In Batson, the Court reaffirmed that it was unconstitutional for a prosecutor to exclude prospective jurors on account of race. In Pitchford, the Supreme Court was tasked with deciding whether Terry Pitchford’s rights were violated when a lower court decided that his defense lawyer had waived the right under Batson to challenge the prosecution’s supposedly race-neutral rationales for peremptorily excluding four out of five prospective black jurors in the case.

Writing for the majority, Kavanaugh, joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, held that Pitchford’s constitutional rights had indeed been violated.

“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,” Kavanaugh wrote. “Then, the trial court can determine whether those asserted reasons were the actual reasons or instead were pretextual.” But “in this case,” Kavanaugh continued, “whether due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down, and the ordinary trial-court procedure for resolving Batson claims at step three never occurred—notwithstanding the repeated efforts of Pitchford’s counsel to pursue and preserve the Batson objection.”

Writing in dissent, Gorsuch, joined by Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett, denied that any such injustice had occurred. “Nothing in the record indicates a trial court seeking to thwart defense counsel’s ability to represent their client,” Gorsuch argued.

Normally, when it comes to matters of criminal justice, Gorsuch is the one with the reputation for being more sympathetic to criminal defendants. Kavanaugh, meanwhile, generally has a reputation for being the more reliable vote in favor of law enforcement.

But this case flipped the script. Here, thanks to an opinion by Kavanaugh, written over Gorsuch’s dissent, a death row inmate’s conviction and death sentence were tossed out. This time around, it was Kavanaugh, not Gorsuch, who gave the civil liberties side the win.

I just learned the sad news that Gordon Wood, the towering historian of the American Revolution, was struck and killed by a car on Sunday. He was 92.

I first encountered Wood’s work as an undergraduate history major and have been reading or rereading him ever since. Probably my favorite among Wood’s acclaimed books is The Radicalism of the American Revolution, which earned him a justly deserved Pulitzer Prize. For those of us who write regularly about early American intellectual, political, and legal history, Wood is one of those scholars whose influence is ever present. RIP.

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