Terence Andrus’ childhood was horrific. From an early age, he faced heinous physical abuse and neglect at home; as a teenager, he was tormented by both peers and guards in juvenile detention. Andrus had a right to present this evidence to the jury at his capital trial, but his lawyer declined, ensuring that his client would be condemned to death. In 2020, the Supreme Court held that this failure, among others, violated the Sixth Amendment guarantee of effective counsel. Then, in an extraordinary act of defiance, five Republican judges on a lower court rejected SCOTUS’s finding, insisting that the higher court got it wrong. These judges all but dared the Supreme Court to bring them into line.
On Monday, the court refused. Instead, it rewarded this insubordination by allowing the lower court’s ruling to stand. This decision is devastating for Andrus, who will likely be put to death without vindicating the constitutional rights that were so egregiously violated at trial. It is also a disturbing signal to the lower courts that disobedience of binding precedent is permissible when it aligns with the majority’s hard-right ideology. There can be no “settled law” when SCOTUS lets rogue judges flout its own rulings and get away with it.
The story of Andrus’ case is tragic. His mother engaged in sex work and drug use when he was a child, selling and abusing drugs in front of her kids. She also beat her children with a board. At times, she disappeared for extended periods and left her kids without supervision or food. Her boyfriends were often violent, beating her and her children. In addition, one boyfriend raped Andrus’ younger half-sister. As a preteen, Andrus was diagnosed with affective psychosis. Sent into Texas’ notorious juvenile corrections system at age 16, Andrus was dosed with massive quantities of psychotropic drugs that were inappropriate for his condition and locked up in solitary confinement nearly 80 times. At the age of 20, during a carjacking he attempted while high on PCP, Andrus killed two people. Prosecutors charged him with capital murder.
In Texas, defendants can only be sentenced to death if the jury unanimously agrees that prosecutors have proved they pose a future danger to society. The state puts forth “aggravating evidence” showing why the defendant deserves to be killed; the defendants, in turn, have a constitutional right to present “mitigating evidence” showing why they deserve to live. Andrus’ attorney, James Crowley, had a duty to investigate and present mitigating evidence to the jury, and if he had looked, he would’ve found a mountain of it.
But he didn’t look. Rather, Crowley called Andrus’ mother to the stand, who lied about her son’s allegedly peaceful upbringing. Crowley then failed to rebut prosecutors’ aggravating evidence—even though they accused Andrus of committing a different violent crime of which he was probably innocent. Predictably, the jury interpreted this one-sided presentation as evidence that Andrus posed a threat of future violence and recommended the death penalty.
Over the following years, Andrus obtained new lawyers who gathered ample mitigating evidence that never made it to the jury. They secured a hearing before a trial court, which ordered a new sentencing proceeding, finding that Crowley provided ineffective assistance of counsel in violation of the Sixth Amendment. The Texas Court of Criminal Appeals, which is made up of elected Republicans, overruled the trial court, declaring that Crowley did not fall “below an objective standard of reasonableness.”
This decision was too much for the Supreme Court, which threw out the Texas court’s ruling in 2020 by a 6–3 vote. (The majority opinion was not signed; Justices Sam Alito, Clarence Thomas, and Neil Gorsuch dissented.) “There is no squaring that conduct, certainly when examined alongside counsel’s other shortfalls, with objectively reasonable judgment,” the majority concluded. The Sixth Amendment was violated here.
But that wasn’t the end of the case: To get relief for ineffective counsel, a defendant must show that their ineffective counsel “prejudiced” them—meaning there’s a “reasonable probability” that it affected the outcome. SCOTUS suggested that Andrus was “prejudiced,” since this mitigating evidence probably would have convinced at least one juror to spare his life. It then sent the case back down so the Texas Court of Criminal Appeals could apply its decision.
That’s not what the Texas court did. Instead, Judge Sharon Keller penned a belligerent 5–4 decision criticizing SCOTUS for questioning her own court’s work. Keller, who opposes freeing or compensating innocent people who are wrongly convicted, told the majority it was incorrect: The mitigating evidence that SCOTUS found “compelling,” she wrote, was actually “not particularly compelling.” Meanwhile, the aggravating evidence that SCOTUS found so weak and threadbare was, in her view, “strong” and “extensive.”
Keller would not even accept the justices’ bottom-line holding that, as a matter of law, Andrus received ineffective counsel: She pointedly referred to “alleged” failures of counsel that SCOTUS “believed” it had identified, then explained why she believed the higher court was mistaken. Based on this rejection of precedent, Keller found that Andrus faced no prejudice and upheld his capital sentence. Four judges dissented, writing that while they also thought SCOTUS got it wrong, they had no power to overrule it from below.
You might expect the Supreme Court to intervene when a lower court defies it so brazenly, if only to maintain discipline within the judiciary. The court, however, has changed over the last two years: Justice Amy Coney Barrett has replaced Justice Ruth Bader Ginsburg, shifting the court far to the right. And on Monday, it turned away Andrus’ plea to correct the Texas Court of Criminal Appeals without comment. Justice Sonia Sotomayor dissented, joined by Justices Stephen Breyer and Elena Kagan. It now seems clear that these three justices, along with Ginsburg, shamed a few conservatives into joining them last time around. Today, with Barrett on the bench, the conservatives abandoned Andrus to an unconstitutional death sentence. Whatever interest Chief Justice John Roberts or Brett Kavanaugh once had in securing justice for Andrus has evaporated.
This desertion reflects the influence of a six-member conservative majority: It’s so much harder for liberals to secure compromises by persuading a colleague or two to fix even the most outrageous errors of law. But there’s a darker signal in Monday’s order: Six justices appear OK with lower courts jettisoning precedent when it leads to an outcome they favor. There’s no real question that that’s what happened here; as Sotomayor wrote in dissent, the Texas court’s decision is “irreconcilable with this court’s prior decision” and bristles with “disdain for this court’s conclusions.” It is “particularly vital that this court act when necessary to protect against defiance of its precedents,” she continued, if only to prevent erosion of “confidence in the functioning of the legal system.”
This problem—conservative judges ignoring Supreme Court precedent on an assumption that new justices will change the law—is not entirely new. It has cropped up repeatedly in reproductive rights cases, where judges who despise abortion will make up any excuse to uphold restrictions. The Andrus mess shows that this tactic is spreading from the uniquely polarizing and political context of abortion to run-of-the-mill constitutional claims like the right to counsel. After gutting this right a few weeks ago by cutting off access to habeas review, the conservative majority gives lower courts the greenlight to turn away strong Sixth Amendment claims—and ignore Sixth Amendment precedent—on the shallowest pretext.
There are favored and disfavored constitutional rights at this Supreme Court. Litigants claiming persecution on the basis of their Christian faith get special treatment while those languishing in prison after receiving unconstitutional trials get nothing. In a legal commentary on his own case, Andrus begged the justices “to keep politics out of our courts” and “interpret the law for righteousness because lives depend on it.” This plea, like his others, has now gone unheeded.