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January 14, 2019

Justice Kavanaugh joins Chief and more liberal Justices in GVR of Kentucky capital case

This morning's Supreme Court order list is fairly short and is mostly denials of certiorari. But the last page of the order list should intrigue capital sentencing fans, and it contains an order in White v. Kentucky, No. 17-9467, in which the Court vacated the decision below "and the case is remanded to the Supreme Court of Kentucky for further consideration in light of Moore v. Texas, 581 U. S. ___ (2017)."

This GVR is made extra interesting because Justice Alito issued this short dissent, which was joined by Justices Thomas and Gorsuch:

The Court grants, vacates, and remands this case in light of Moore v. Texas, 581 U. S. ___ (2017). But Moore was handed down on March 28, 2017—almost five months before the Supreme Court of Kentucky reached a decision in this case. I would accordingly deny the petition for the reasons previously stated in my dissent in Kaushal v. Indiana, 585 U. S. ___, ___ (2018), and in Justice Scalia’s dissenting opinion in Webster v. Cooper, 558 U. S. 1039, 1040 (2009).

As the title of this post suggests, I find the fact that Justice Kavanaugh did not join this dissent particularly noteworthy, though the fact that the Chief Justice usually provides the key fifth vote in these types of cases prevents me from too boldly predicting at this early stage that Justice Kavanaugh could prove to be a swing vote in capital cases akin to the role his predecessor Justice Kennedy played.

January 14, 2019 at 09:51 AM | Permalink

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