Three's Company: Once Again, Roberts Sides with Scalia and Thomas

The Supreme Court issued a much-anticipated decision in a hotly contested death penalty case today. Writing for a narrow 5-3 majority--Justice Alito didn't participate because the case was argued before he took his seat--Justice Kennedy held that Paul House had brought forward sufficient evidence of his innocence to entitle him to a hearing in federal court on otherwise procedurally barred claims that his trial suffered from serious constitutional shortcomings. Post-trial, House had shown not only that DNA evidence proved that the semen found on the victim came from the victim's husband (not him), but that two witnesses had heard the victim's husband confess to the murder and that the only remaining piece of physical evidence incriminating House -- a stain of the victim's blood on his pants -- may well have been produced by law enforcement's admitted spillage of blood samples.

Unsurprisingly, Justices Thomas and Scalia were entirely unpersuaded. Notably, however, they were joined by our new Chief Justice, John Roberts. Writing in dissent for the three of them, Roberts found that all the new evidence (which caused Justice Breyer to exclaim during argument, "my goodness, I don't know who committed this crime"), just wasn't enough to excuse the failure of House's lawyer to properly raise his constitutional claims at the appropriate time. Roberts thus concluded that House was SOL in terms of getting his case heard in federal court.

A number of commentators have written recently that, as evidenced by the unusual number of unanimous decisions issued thus far this term, Roberts is striving mightily -- and often successfully -- for consensus on the court. But like the divided Oregon assisted suicide and Fourth Amendment decisions from earlier this term, today's decision shows that in the difficult cases, consensus may prove impossible. And in those cases, as conservative legal scholar Douglas Kmiec stated, Roberts can be expected to side "with his friends" -- i.e., Scalia, Thomas and Alito.

Significantly, the House case also demonstrated the impact of judicial nominations in the lower courts. The trial court initially denied House the chance for a hearing on the merits of his claims. A 6-5 en banc Sixth Circuit disagreed, finding that House had made a compelling showing of actual innocence and sending the case to the Tennessee Supreme Court to resolve a question regarding Tennessee procedure. But when the case came back to the Sixth Circuit -- after the addition of four Bush II appointees -- a bitterly divided 8-7 en banc court essentially reversed itself and denied House relief altogether. All eight judges in the majority were Republican appointees.

House v. Bell, No. 04-8990, slip op. (US Supreme Court June 12, 2006).

(For further reading, please check out the Washington Post's on-point editorial "Widening the Gateway." This Full Court Press entry also cross-posted at Alliance for Justice's Justice Digest.)