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Justice Sonia Sotomayor writes rare death row win in 5-4 ruling

Arizona pushed a Kafkaesque legal theory — and would've won if Justice Amy Coney Barrett’s dissent had prevailed.


The Supreme Court is generally a hostile place for death row prisoners, but they picked up a rare win on Wednesday — barely. 

To be clear, there's no anti-death penalty revolution underway at the court that helped carry out Donald Trump's execution spree in the waning days of his presidency. Instead, Justice Sonia Sotomayor’s 5-4 opinion in Cruz v. Arizona shows that, if a state makes a ridiculous enough argument, then sometimes, maybe, they’ll lose by a razor-thin margin.

Here’s how it happened, with apologies for some brief background that's necessary to understanding the decision.

The 1994 Supreme Court ruling in Simmons v. South Carolina said that when future dangerousness is at issue — whether a defendant will continue to pose a threat to society — that defendant can tell the jury they’re ineligible for parole if the jury doesn’t sentence them to death. That can make a difference to jurors who might not want to sentence someone to death but are concerned that a seemingly dangerous defendant could be released in the future.

Arizona, however, resisted applying the Simmons precedent for years, to the point that the Supreme Court in 2016 had to issue a ruling that essentially told the state: "Hey, you have to abide by the law." (Naturally, Justices Clarence Thomas and Samuel Alito dissented from that 2016 ruling in Lynch v. Arizona.)

Then we get to the case of John Montenegro Cruz. He was sentenced to death after being blocked from telling the jury that he couldn’t be paroled, and he lost an initial appeal before the Lynch decision of 2016. After Lynch, he cited a state procedural rule that allows a challenge when there’s been “a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.”

Yet, somehow, the Arizona Supreme Court said that the 2016 ruling in Lynch wasn’t a “significant change.” Pointing out how ridiculous that is, Justice Elena Kagan at oral argument last year had this to say about the state's position:

I think Kafka would have loved this. Cruz loses his Simmons claims on direct appeal because the Arizona courts say point-blank Simmons has never applied in Arizona. And then he loses the next time around because the Arizona courts say Simmons always applied...

Kagan's point was persuasive. But given the court's pro-death penalty bent, I wasn't certain at all that Cruz would win — even being ably represented by Neal Katyal, a former acting solicitor general and an MSNBC legal analyst.

But on Wednesday, a bare majority of the court agreed to rule against the state once again. Arizona tried to insulate its stupefying state ruling on technical grounds, but Sotomayor observed that this is an “exceptional case” that “rests on a novel and unforeseeable state-court procedural decision lacking fair or substantial support in prior state law,” and so federal review was appropriate.

Unsurprisingly, Sotomayor was joined by her two fellow Democratic appointees, Kagan and Justice Ketanji Brown Jackson. More surprisingly, Chief Justice John Roberts and Justice Brett Kavanaugh also joined. As I noted above, this doesn’t mean that the court has undergone a revolution by any stretch — after all, it’s an “exceptional case,” as Sotomayor wrote.  

Nonetheless, Arizona almost pulled off its legal heist, if Justice Amy Coney Barrett’s dissent had its way. Barrett actually called the state’s position “kind of artificial” and “hair splitting” at the oral argument. But she wound up leading the way in dissent, joined unsurprisingly by Thomas and Alito (who dissented in the 2016 Lynch case) and Justice Neil Gorsuch, who, along with Thomas and Alito, is one of the most likely justices to rule against death row prisoners.

Indeed, Barrett’s dissent went so far as to call the majority opinion “jarring.” I think that’s a good way of describing how far some of the justices are willing to go to help the government turn the machinery of death.