WASHINGTON—A divided Supreme Court on Monday reinstated a death sentence for a West Coast rapist and murderer, illustrating the difficulty that Chief Justice John G. Roberts has had in reaching his goal of more judicial unanimity.
In a 5-4 decision, the court made it harder for death-row inmates to challenge jury selection. The opinion marks the 13th time this year that the court has ruled by a one-vote margin. With the session's toughest decisions still pending, the court already has rendered more 5-4 opinions than it did in all of last year.
"It makes it look like the court is more political than legal," University of Richmond law professor Carl Tobias said, "but maybe that pragmatic reality is something the public should be aware of."
The recurring one-vote margins might further underscore the issue of Supreme Court nominations in next year's presidential election, Tobias suggested.
More immediately, Monday's decision moves Washington state inmate Cal Coburn Brown one step closer to execution. Brown tortured and raped a woman in Palm Springs and raped, tortured and murdered another woman near the Seattle-Tacoma airport 16 years ago.
The court's conservative majority ruled that federal appellate courts must tread carefully when second-guessing decisions on jury selection.
"Federal courts ... owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror," Justice Anthony Kennedy wrote.
In Brown's case, the trial judge in Washington's King County had dismissed a potential juror who seemed hesitant about imposing the death penalty. The trial judge reasoned that those doubts might cloud the juror's decision-making.
The jury found Brown guilty of murdering 22-year-old Holly Washa. In May 1991, Brown had carjacked Washa and driven her to a motel. He held her for two days, periodically whipping and sexually assaulting her, before he slit her throat, stuffed her in a car trunk and left her to die in a parking lot.
Brown then flew to Palm Springs, where he tortured and raped a woman he'd met earlier, handcuffing her to a bed and slitting her throat. She survived.
"Cal Brown is not a nice man," summed up Judge Alex Kozinski of the San Francisco-based 9th U.S. Circuit Court of Appeals.
The appellate panel nonetheless rejected Brown's original death sentence, ruling that the trial judge had relied on "misplaced and insufficient" reasons in dismissing the potential juror. Previous Supreme Court cases have specified that juries can't be unduly "tilted" toward the death penalty.
So-called "Juror Z" had indicated under questioning that he might consider the death penalty only "in severe situations." At other times, though, Juror Z seemed more equivocal.
The Supreme Court's decision Monday reversed the 9th Circuit. Potential jurors, the high court had ruled earlier, may be rejected if their beliefs pose a "substantial impairment" to their ability to impose death sentences. Kennedy elaborated Monday that trial judges—not appellate courts—are usually best suited to evaluating potential jurors' "demeanor" and "nonverbal communication."
"Where, as here, there is lengthy questioning of a potential juror, and the trial court has supervised a diligent and thoughtful (jury review), the trial court has broad discretion," Kennedy wrote.
In a sign of sharp dissent, Justice John Paul Stevens read his minority opinion from the bench. Such public dissents have been occurring more regularly in recent weeks.
Stevens said the majority's ruling seemed to be encouraging the inclusion of jurors who'd impose the death penalty while excluding those who wouldn't vote to execute.
"A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases," Stevens wrote.
The 5-4 lineup Monday reflected the court's recurring ideological divide. Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer joined Stevens in dissenting. Kennedy was joined by Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.
Once, Roberts had assured lawmakers that he'd heal breaches on the court.
"I do think the chief justice has a particular obligation to try to achieve consensus consistent with everyone's individual oath to uphold the Constitution, and that would certainly be a priority for me," Roberts told the Senate Judiciary Committee at his September 2005 confirmation hearing.
The committee's then-chairman, Republican Arlen Specter of Pennsylvania, further urged Roberts to "try to avoid this proliferation of opinions and avoid all these 5-4 decisions." This has proved hard to do.
Last term, 12 cases were decided by 5-4. The 13 cases decided so far this year by one-vote margins almost certainly will grow before the court adjourns this month.
The remaining undecided cases include affirmative-action cases out of Kentucky and Washington state, which many court observers predict will come down to 5-4 votes. The court upheld the University of Michigan Law School's affirmative action program by 5-4 in 2003.
In other cases, the court fractures over its reasoning. On Monday, for instance, a complicated case involving Safeco Insurance Co. yielded multiple opinions including differences over footnotes.
Taken together, the cases illustrate that consensus remains elusive.
"It's just extremely difficult," Tobias said. "Maybe (Roberts) wasn't really being realistic."