WASHINGTON -- For the second time in as many weeks, Chief Justice John Roberts has sided with liberal Supreme Court justices to disagree with how lower courts have interpreted Supreme Court precedent.
On Tuesday, Roberts was pointed in saying the Texas Court of Criminal Appeals has "misapplied" a 2017 ruling that instructed that court to reconsider its analysis of whether death-row inmate Bobby James Moore was intellectually disabled, and thus ineligible for execution.
"On remand, the court repeated the same errors that this court previously condemned," Roberts wrote, concurring in the majority's finding Tuesday that Moore "is a person with intellectual disability."
Less than two weeks ago, Roberts joined the liberals in stopping a Louisiana abortion law that was nearly identical to a Texas law the court had struck down in 2016.
In both of the original decisions on the abortion and death-penalty cases, Roberts had been in dissent. His actions are not a sign that he has changed his mind; the ruling that the Louisiana law could not go into effect at this time was not a decision on the merits of the law.
But they do seem to be an indication the chief justice believes lower courts must comply with Supreme Court precedents so long as they stand.
The Texas court's review of Moore "did not pass muster under this court's analysis last time," Roberts wrote in a separate opinion. "It still doesn't."
The court in an unsigned opinion said the Texas court was wrong to reaffirm that Moore was mentally capable, and eligible for execution. Three of the court's conservatives -- Clarence Thomas, Samuel Alito and Neil Gorsuch -- disagreed.
Alito wrote that the court's instructions in the 2015 ruling on Moore were so gauzy it is no surprise that the Texas court had trouble following them. The proper response, he said, would have been to return the case with more specific instructions, not to take the decision away.
"The court's foray into fact-finding is an unsound departure from our usual practice," Alito wrote.
In a 5-to-3 decision written by Justice Ruth Bader Ginsburg, the court sent back the case of Moore, who fatally shot store clerk James McCardle in a botched robbery in 1980. Moore's decades-long trip through the appeals courts has been marked by conflicting opinions on whether he is intellectually disabled.
Texas' Court of Criminal Appeals eventually determined that he was not. But the Supreme Court concluded that this decision improperly relied on outdated medical standards, borderline IQ scores and a list of unique-to-Texas factors that Ginsburg termed an "invention ... untied to any acknowledged source."
The Texas court once again considered Moore's intellectual abilities, and again found him competent.
But on Tuesday, the Supreme Court majority was unimpressed: "We have found in its opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion."
In the Louisiana abortion case, Roberts did not spell out his reasoning. Instead, he joined the liberal justices in keeping the law -- which required doctors performing abortions to have admitting privileges at nearby hospitals -- from taking effect. Challengers had said it would likely leave only one clinic open, and one doctor who could provide abortions.
It is likely that because of the granted stay, the court will next term consider the merits of the law.
In that stay decision on Feb. 7, Thomas, Alito and Gorsuch also dissented, along with new Justice Brett Kavanaugh.
A Section on 02/20/2019