In today’s ruling in Thornell v. Jones, the Supreme Court ruled that a Ninth Circuit panel wrongly held that a defendant’s Sixth Amendment right to the effective assistance of counsel was violated during the sentencing phase of his capital trial. In particular, Justice Alito’s majority opinion for six justices determined that the panel “substantially departed from the well-established standard articulated by this Court in Strickland v. Washington (1984)” by “all but ignor[ing] the strong aggravating circumstances in this case.”
Notably, Justice Sotomayor, joined by Justice Kagan, expressly “agree[d] with the Court that ‘the Ninth Circuit all but ignored the strong aggravating circumstances in this case.’” Sotomayor would have the Ninth Circuit reweigh the balance of aggravating and mitigating circumstances on remand, and her opinion, though agreeing with the majority that the Ninth Circuit erred, is therefore formally a dissent.
Only Justice Jackson thinks that the Ninth Circuit got it right.
I would like to focus here on a galling aspect of Jackson’s brief opinion. Jackson contends in her opening sentence that Alito’s majority opinion “makes many mistakes of its own, including misreading the Ninth Circuit’s opinion.” In a footnote, she elaborates on Alito’s supposed misreading:
Compare, e.g., ante, at 7–8 (accusing the panel of “appl[ying] a strange Circuit rule that prohibits a court in a Strickland case from assessing the relative strength of expert witness testimony”), with Jones v. Ryan, 52 F. 4th 1104, 1129 (CA9 2022) (“This is not to say, of course, that a district court is prohibited from making credibility determinations”).
What Jackson somehow omits is that the very passage in the Ninth Circuit’s opinion that Alito cites states:
“We have held that a district court should not independently evaluate which expert was most believable….”
Jackson doesn’t try to argue that Alito’s summary of the “strange Circuit rule” differs one iota from this passage. Nor does she make any effort to think through how this passage fits with the passage that she invokes. Instead, she simply hides it from the reader to paper over her cheap claim that Alito is “misreading the Ninth Circuit’s opinion.”
On Jackson’s sweeping claim that Alito’s opinion makes “many [other] mistakes”: The only one that she makes any effort to identify is the very one on which Sotomayor and Kagan agree with Alito (and all of the other justices): that the Ninth Circuit “all but ignored the strong aggravating circumstances in this case.”
I’m pleased, by the way, to note that I highlighted the Ninth Circuit opinion as dubious on the very day that it was issued nearly four years ago.