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This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court. The best way to support our work—and unlock exclusive legal analysis—is by joining Slate Plus. (If you are already a member, consider a donation or merch!)
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On Monday, the Supreme Court issued about a criminal defendant’s right to a fair trial and an honest prosecution. The case concerned an appellate court decision that had determined a man’s guilt based on new facts that had never gone before the jury; the Supreme Court reversed this holding, ruling that the defendant’s rights were violated. Justice Clarence Thomas, joined by Justice Samuel Alito, would have allowed the man, Gary Whitton, to be found guilty and be subject to execution, despite the procedural error in the court below. And although the start of their dissenting opinion is fairly consistent with Thomas’ and Alito’s harsh jurisprudence on criminal matters, the justices then do something strange. In this criminal-law case, they dig into a pile of past civil cases concerning completely unrelated legal issues for which the court has recently denied certiorari, then try to argue that SCOTUS goes out of its way to protect murderers while allowing rights to be taken from “law-abiding citizens.” As this term has shown, what we actually have is a court that frequently lets lawlessness reign when the government does something wrong but fights tooth and nail to deny fair process for the people it views as criminals.
Gary Richard Whitton was accused of committing a 1990 murder in Florida. A Florida jury later found him guilty and sentenced him to death. But two issues emerged as the case proceeded. The first was that a key witness, one who claimed he had heard Whitton confess to the crime while in prison, had lied to the court about having a criminal record. State prosecutors were aware of this lie but failed to disclose it, denying Whitton of the key constitutional right to challenge the credibility of a witness against him. In considering this issue, the U.S. Court of Appeals for the 11th Circuit then created a second problem with Whitton’s case. The court claimed that even though it “agreed with Whitton that [the witness’s] criminal-history testimony was false, and that the State knew it to be false,” he should be found guilty and executed anyway. In explaining why, the 11th Circuit relied on, among other things, evidence from a DNA test that was conducted a decade after the state had convicted Whitton; according to the court, the test established his guilt regardless of the witness issue.
The Supreme Court reversed this decision, stating that the lower court acted inappropriately by considering a postconviction DNA test that Whitton never got to challenge and that his jury never got to review.
Thomas and Alito would have disregarded both the witness and the postconviction issues. Their dissent treats Whitton as clearly guilty, flatly concluding from the start, “Gary Whitton murdered his friend.” The two justices go on to consider the dishonest witness testimony as a moot point, give great weight to the DNA never seen by the jury, and argue that Whitton failed to exhaust his arguments in state court.
This opinion would be par for the course in Thomas’ and Alito’s jurisprudence, which tends to be incredibly damning toward criminal defendants. But then the opinion takes a bizarre turn toward a kind of metacommentary about the Supreme Court’s priorities. Thomas’ opinion argues that this case is just one of many examples in which “this Court routinely declines to provide relief to law-abiding Americans,” while at the same time providing murderers a helping hand.
Thomas offers three examples of what he means by law-abiding Americans who the justice says have been denied their rightful chance to be heard at the high court: a group of parents and students who claimed anti-white and anti-Asian discrimination at a public school. A widow whose husband was killed in a car accident by a negligent driver but who could not bring a lawsuit because of a federal statute preserving governmental immunity. An anti–diversity, equity, and inclusion student association that wanted to sue Indiana University for having bias response teams. All these groups petitioned the court for review in their cases. Thomas wanted the court to hear them but failed to persuade his colleagues to agree.
The majority of his colleagues chose not to hear those cases for good reason.
In the first case Thomas cites, , a group of parents challenged a Boston high school policy that aimed to enroll students at racial percentages proportional to the demographics surrounding the school. But after the suit was filed, the school ended the policy. In other words, the case became moot, as it would have required the courts to weigh in on a policy the school had rescinded and replaced with one that the parent group preferred. Justice Neil Gorsuch explained exactly that in his opinion stating why he would deny cert, and a majority of the court apparently agreed.
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In another case, , Thomas took issue with bias response teams, organizations that provide resources for students suffering from discrimination on campus and that have drawn the ire of legal conservative groups over the past few years. The advocacy group Speech First challenged such a policy at Indiana University. But the problem with the group’s claim is that none of its members had actually been targeted by any bias response team for their speech. Instead, Speech First brought only preemptive claims speculating that their members’ views might someday in the future be chilled. University administrators explained that the anti-bias program was entirely optional and administratively toothless; it does not involve or even allow, for example, formal investigations into what plaintiffs believed would be anti-conservative voices. But Thomas didn’t care about the actual lack of harm. He saw a widespread First Amendment violation, and he would hear the case and shut down the organization—not just Indiana University’s anti-bias program, but the “” such groups nationwide. One might assume that if these bias response teams were so insidious and widespread, there would be other cases in which students had been unfairly targeted by public universities, providing a clearer instance for standing.
Last but not least, Thomas references a case about a deceased Air Force sergeant in . This concerned a service member who was killed in a car accident by a federal employee driving a government vehicle. After his widow tried to bring a wrongful-death claim against the driver and the government, the court ruled that the Federal Tort Claims Act was not broad enough to waive sovereign immunity for such claims, meaning that the case couldn’t go through. This is a sad story, and Thomas may be correct that the case is the wrong reading of the act. But as Justice Sonia Sotomayor explains, the case is also fairly cut-and-dried based on a Supreme Court interpretation of the statute dating back to 1950. In short, the lower court’s ruling had gotten the legal question right, and the principles of precedent did not support changing that ruling.
In summary, Thomas asks the court to attack school policies that no longer exist, make broad First Amendment pronouncements based on constitutional harms that haven’t occurred, and overturn yet another case that has been around for more than half a century. What’s odd is not that the court denied certiorari in any of these cases—something that happens with about 95 percent of all petitions. Rather, what’s odd is that none of them have anything to do with Whitton’s criminal case, which the court was considering.
It’s not uncommon for a justice dissenting from a shadow-docket order to explain their reasoning, even in a way that compares the instant matters with other cases that have recently come before the court. For example, a justice might explain how a merits decision from the court, like April’s Callais case, regarding Louisiana’s congressional maps, mightnot cover an Alabama map because of different facts on the ground. No, the bothersome part of Thomas’ opinion is the attempt to cast this court as a friend of criminals and a hater of the good, God-fearing public.
In actuality, the conservative majority on the court is no ally to criminal defendants, as freshly evidenced in this term’s interpretations of the First Step Act. Just last week, the court ruled, in Fernandez v. United States, that prisoners cannot seek compassionate release under the 2018 statute intended to allow exactly that relief, even if they show that their original convictions were inaccurate or unfairly decided. The court then issued a related ruling in Rutherford that prisoners could not receive a reduction in sentence based on mandatory minimums that Congress had reduced after their conviction. As a result, someone “who faced a 32-year mandatory minimum” for a crime and “was sentenced to 42.5 years” would have to serve all of those decades, despite the mandatory minimum having later been lowered to 14 years.
These are hardly examples of the court showing TLC for criminal defendants, and it undercuts Thomas’ claims on Monday. At most, Whitton’s case appeared to be a new opportunity to explain that a court could not rely on postconviction DNA evidence, an issue that has split the lower courts. It is in no way proof that this Supreme Court is quick or ready to defend the little guy.
Thomas’ “law-abiding” opinion also sits oddly with his own place within the court’s decisionmaking history. After years of being in the minority with his originalist views, the justice has had incredible influence on the court’s decisions since the first Trump administration’s nominees arrived. There are books asserting that this version of SCOTUS is the Thomas court. He has written his views into law in cases as consequential as the massive Second Amendment expansion in New York State Rifle and Pistol Association v. Bruen. And Thomas has been in the majority of practically every controversial opinion in the court’s recent history, including Callais’ gutting of the Voting Rights Act, Dobbs’elimination of American women’s right to choose, and Skrmetti’s blessing of the Tennessee ban on gender-affirming care for minors. It is these cases, not the ones Thomas cites, that are the better examples of the court denying the rights of the most vulnerable members of our society. But apparently the work is not finished. SCOTUS must also take up and decide even more cases that Thomas would prefer, while it punishes those he determines to be bad people engaging in criminal enterprises. Ultimately, Thomas’ insistence on Monday that the court is denying the rights of law-abiding citizens is nothing more than a kind of judicial greed.
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