SCOTUS GVRs Capital Case After 13 Reschedules And 10 Relists

It seems to have taken some time to corral Justice Barrett's vote in a case involving evidence and sex-based slurs.

Andrew v. White, a capital case has been floating around a year. On January 22, 2024, the cert petition was filed. And on January 21, 2025, the Supreme Court GVR'd the case. The per curiam begins

An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death. The State spent significant time at trial introducing evidence about Andrew's sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause. The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By thetime of Andrew's trial, this Court had made clear that when "evidence is introduced that is so unduly prejudicial that itrenders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Payne v. Tennessee, 501 U. S. 808, 825 (1991).

John Elwood offered this summary of the history at Petitions to Watch:

(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15, Nov. 22, Dec. 6, Dec. 13 and Jan. 10 conferences.)

Can that be right? 13 reschedules and ten relists? That is a lot of arm-twisting and cajoling to get a GVR. One of my proposals for bilateral judicial reform is that the Justices would have to resolve a cert petition within 90 days after it is filed. As they say, grant or get off the pot.

For certain, Justices Thomas and Gorsuch dissented from the order. And I doubt Justice Kavanaugh would note a dissent from this fact pattern, in particular. Justice Alito concurred in the judgment  If I had to guess, it took the liberals some time to persuade Justice Barrett to go along with a GVR. The entire case is about evidence. In particular, evidentiary issues concerning slurs against women. See Footnote 1:

Similarly, the dissent asserts thatAndrew falsely accuses the prosecution of calling her a "slut puppy" in closing argument. Post, at 7, n. 3 (opinion of THOMAS, J.). Whether the prosecution quoted something it believed Andrew once said to suggest to the jury that Andrew herself was a "slut puppy," or simply to recite an alleged abusive phone call, is a question of fact for the Tenth Circuit to resolve.

Note to practitioners: if you want Justice Barrett's vote, make the case about evidence.

Just yesterday I noted that Justice Barrett may be the weakest link among conservatives in capital cases. This case is another data point.

This is one reversal of the Oklahoma Court of Criminal Appeals. Let's see what happens in Glossip.