On Wednesday, the Supreme Court issued an unexpected trio of opinions that should collectively have progressives breathing a sigh of relief—one unanimous opinion in a bankruptcy case, one split decision that ruled in favor of a worker seeking overtime, and another split decision that ruled in favor of a capital defendant who was challenging his sentence in state court.
These aren’t the usual results these days at 1 First Street. And it’s worth taking a moment to consider what went right. That’s particularly warranted for the court’s decision in Cruz v. Arizona, which held that states are actually required to adhere to Supreme Court precedent, at least some of the time, or at least in cases that have nothing to do with abortion. But it’s also important to recognize how close—one vote—the Supreme Court came to plunging us further into nihilism and lawless shell games.
The issue in Cruz v. Arizona sounds technical, but it affects whether defendants have any remedies when their rights are violated. The case is also about basic principles of the rule of law.
The Cruz case arises out of Arizona’s refusal to apply a Supreme Court case that governs states’ imposition of the death penalty. In Simmons v. South Carolina, the Supreme Court held that during the penalty phase of a capital sentencing proceeding, states must inform a jury whether the defendant would be eligible for parole if they were not sentenced to death. That is, the state had to tell the jury whether, if they didn’t impose the death penalty, the defendant could get out of prison, particularly if the state was arguing for the death penalty on the grounds that the defendant posed a risk of danger in the future.
While the particular case of Simmons arose out of South Carolina, the rule that it announced—states must inform juries whether a capital defendant will be eligible for release if they are not sentenced to death—applies everywhere. But Arizona courts refused to apply the rule, even after Arizona changed its law so that people who are convicted of capital crimes were not eligible for parole. Arizona courts refused to apply Simmons for almost two decades, until the court shot them down. In 2016, in Lynch v. Arizona, the Supreme Court held that Arizona was bound by the Supreme Court’s decisions—and that Arizona therefore had to inform Arizona juries whether capital defendants would be eligible for parole.
But the Arizona courts didn’t give up. Instead, Arizona courts refused to apply the Supreme Court’s decision in Lynch to cases that had already been decided. They refused to apply Lynch on the grounds that state law allowed defendants to challenge their convictions or sentences on the basis of “new” Supreme Court rules. And, Arizona continued, Lynch did not announce a “new” rule. Lynch had simply applied an existing rule (from Simmons) to Arizona without actually changing the law in the process.
What? Arizona’s position would have effectively left Arizona defendants with no remedy at all. That’s because before Lynch, Arizona courts were refusing to apply the rule in Simmons. And after Lynch, Arizona courts maintained that they still didn’t have to apply Simmons to those older cases, because it was so obvious that they should have been applying Simmons all along.
As Justice Elena Kagan explained at oral argument:
I think Kafka would have loved this. Cruz loses his Simmons claims on direct appeal because the Arizona courts say point-blank Simmons has never applied in Arizona. And then he loses the next time around because the Arizona courts say Simmons always applied … I mean, tails you win, heads I lose, whatever that expression is? I mean, how—how can you run a railroad that way?
Indeed. In a majority opinion by Justice Sonia Sotomayor, the Supreme Court affirmed that states cannot play “heads I win, tails you lose” with constitutional rights. (Sotomayor wrote for a majority of five that included the other Democratic appointees, Chief Justice John Roberts, and Justice Brett Kavanaugh. Justice Amy Coney Barrett wrote the dissent. This is basically the same lineup, with Justice Ketanji Brown Jackson replacing Justice Stephen Breyer, as the case last term where the court preserved the procedure that allowed people sentenced to death to challenge how the state planned to execute them.)
Had the Supreme Court countenanced Arizona’s scheme, it would have enabled states to ignore Supreme Court cases that Arizona didn’t like. It would have permitted states to refuse to give effect to any Supreme Court precedent the states and Supreme Court justices didn’t like—and to deny people their rights in the process.
If that concern sounds familiar, it should. It’s basically what the Supreme Court allowed Texas to get away with on abortion in the S.B. 8 case before the court ultimately overruled Roe v. Wade last term. In 2021, the Texas legislature adopted S.B. 8, a novel abortion restriction that was designed to shut down abortion access without allowing abortion providers to challenge the law in court. In the case challenging S.B. 8, five justices (the five justices who would later overrule Roe) let Texas get away with that gambit while Roe was still standing. The five justices allowed Texas to effectively nullify a Supreme Court decision that Texas didn’t care for, and that six justices on the court didn’t care for either.
Had the court allowed Arizona to do the same in Cruz v. Arizona—to nullify a decision that Arizona and probably a majority of justices on the court didn’t care for—it would have facilitated even more legal machinations that deprive people of their constitutional rights. Framed that way, it’s actually a little frightening that Arizona came within one vote of pushing us further toward a world of open season on any case that Republican-led states and Republican-appointed justices don’t like.
But for now, five justices are willing to say states must actually apply and enforce Supreme Court precedents. At least, some of the time.