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.

Comments

[F.D. Wolf]

As the case involves slurs against women, I wonder if it will be affected at all by the new 28th Amendment.

[John F. Carr]

On retrial, for every time a witness is induced to refer to the killer as a slut another witness will be required to refer to the victim as a stud.

[A Japanese Student]

This is not “one reversal of the Oklahoma Court of Criminal Appeals”. The petition involved the application of a federal statute (AEDPA) in a federal habeas. CA10 has to determine themselves if OCCA was indeed flouting the Constitution.

[Michael P]

“As they say, grant or get off the pot.”

I am not a lawyer. Is that really something that lawyers say verbatim, or is that just a not-as-they-say paraphrase?

[David Nieporent]

It’s not something they say at all; it’s just Blackman attempting to be witty. (Which, to be fair, is better than him attempting to be intellectual.)

[LawTalkingGuy]

Why is Josh taking time out of his busy schedule of gushing over the Trump EOs to write fan fiction about a case he has zero clue about? He actually has no idea what the votes and debates were and he’s just straight up making stuff up and purporting to give advice to practitioners. Something he also doesn’t know much about, particularly something as complex as capital habeas litigation.

And all this fan fiction/kremlinology sort of flies in the face of what is written, which tells a pretty clear story. If Alito of all people is concurring on a GVR in an AEDPA case in favor of a defendant, that likely means it was 7-2 or 6-3 from the start. With the most likely vote switch being Alito after seeing draft opinions and realizing how incorrect the 10th Circuit’s analysis was. Which would explain his concurrence where he basically says: oh this error is really obvious.

All this (somewhat sexist) speculation about Barrett is just nonsensical.

[Ed Grinberg]

“somewhat sexist”
You’ll have to explain that one. Did Prof. Blackman say that she votes the way she does on death-penalty cases because she’s a woman? No, he didn’t. So, what’re you talking about? Or is it just that saying anything negative about a woman makes you “sexist,” just like saying anything negative about a black person makes you “racist”? I bet that’s it.

[LawTalkingGuy]

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

This is his byline. Why is he saying this when he has no evidence of her thoughts on this case? What possible connection does this have to her jurisprudence or vote? What makes her vote different than Kavanaugh or Roberts under these facts?

“The entire case is about evidence. In particular, evidentiary issues concerning slurs against women.” Again, why is he singling out Barrett here when she didn’t write separately? What makes her different than Kavanaugh or Roberts? (Or Alito!)

[Stupid Government Tricks]

Three paragraphs to complain that Josh writes too much?

Whassa matter, run out of time in your busy schedule and it’s JUST *stomp* NOT *stomp* FAIR that he makes you read all his posts?

Ah poor baby. You Josh haters are sure a bunch of masochists.

[LawTalkingGuy]

Whassa matter, run out of time in your busy schedule and it’s JUST *stomp* NOT *stomp* FAIR that he makes you read all his posts?

What the actual fuck is this reaction? I don’t read all his posts. But I read this one and found it incredibly stupid and out of his depth so I criticized it. What’s wrong with doing that?

[Noscitur a sociis]

LawTalkingGuy’s complaint isn’t that Prof. Blackman wrote too much, except in the better-to-be-thought-a-fool sense. His complaint is that the stuff he did write is very dumb.

[MaddogEngineer]

Why? Because ACB, like the chief before her, is disappointing him.

He’s a results oriented judicial advocate, who has been continually butt hurt that ACB’s principles about the shadow docket have been keeping some cases from being decided as he would like.

This was another opportunity to take a gratuitous (but again undeserved) swipe at her as unprincipled. When he is more often the one unprincipled. Their might be another principle at work here, but he’s too busy nursing his latest grudge to possibly notice.

[SRG2]

Decision here: https://www.supremecourt.gov/opinions/24pdf/23-6573_m647.pdf

I find it curious that Josh did not see fit to comment on Thomas’s exceptionally long dissent. other than to note that he dissented.

As usual the giveaway with Thomas is that he spends so much time discussing the crime – he is a fan of poisoning the well like this.

[LawTalkingGuy]

Scalia did this with Henry McCollum, even bringing up the facts of that crime in unrelated capital cases to, as you say, poison the well. It was supposedly the perfect case to demonstrate why capital punishment is appropriate and why courts should be skeptical of challenges.

Turns out he was actually innocent and DNA evidence exonerated him. So innocent in fact a Republican governor also pardoned him and a North Carolina jury awarded him a lot of money.

[SRG2]

When it came to capital cases, Scalia was basically a latter-day Arnaud Amalric.

[MaddogEngineer]

Or, and hear me out because this is kind of crazy, Scalia did not view SCOTUS as a court of error correction. Which is what most capital cases end up arguing by the time they reach it. Somebody pretending a key piece of info was wrongly ignored. Except 99 times out of 100, it’s just desperate grasping at straws by advocates who believe the death penalty is unconstitutional, looking for any technicality.

So yeah, I understand why Scalia may have been a bit jaded.

[SRG2]

Scalia did not view SCOTUS as a court of error correction.

The idea that it is not unconstitutional to execute an innocent person would have allowed him the luxury of that convenient position.

And it makes my Arnaud Amalric comment all the more accurate.

It would indeed be peculiar that the SC can decide on whether a court has erred, and can be a fact-finder when it wishes to be, but can’t correct a factual error.

[MaddogEngineer]

There’s nothing wrong with that. Especially when the liberals also spend many paragraphs in dissent doing the same thing, recounting the injustice du jour the court has failed to rectify.

[robbbb]

How come thomas refers to the guy by his first name and the woman by her last (married) name?

[Katall]

What does this mean: “Justice Barrett may be the weakest link among conservatives in capital cases”? Is this an allegation that conservatives would allow the death penalty in any circumstances? That is a pretty harsh criticism of conservatives. No compassion. A very unreligious view.

[Stupid Government Tricks]

Perhaps compassion for victims is more compassionate than compassion for murderers.

[SRG2]

1. The actual victim is beyond compassion.
2. If you’re considering – quite reasonably – compassion shown to the family and friends of the victim, that inevitably leads to the strange idea that the sentencing should depend on how loved or liked the victim was.

[Ed Grinberg]

Hmmm… Could it be that it’s “liberals” who “would [oppose] the death penalty in any circumstances,” (spuriously) claiming that it’s unconstitutional? I’d say that’s a pretty harsh (indeed, damning!) criticism of “liberals.”

[Katall]

Some people (many Popes included, I believe) think that the death penalty is immoral and will grasp to any straw to prevent governments from implementing it. I don’t believe that is necessarily a “liberal” viewpoint.

As for compassion. I have compassion for the victims. My issue is that the death penalty is, like the entire justice system, basically, arbitrarily enforced. Rich people get good representation, poor may not. Some people get prosecuted and found guilty of falsifying business records, some do not. Some people get prosecuted quickly for conspiring to attack the capitol, some do not and get elected president (albeit, a trial might have resulted in acquittal). Prosecutors, generally, are not held to any standard (high or low), except based upon their conviction rate.

When you find a way to get blind justice for all, then I might be the first on board in supporting the death penalty as a societal norm (even thought I might find it morally objectionable).

We have progressed some since the Scottsboro case, but not enough. It is naive to think that, today, people whom the authorities don’t like (whether they be minorities, political enemies, or otherwise) are treating fairly when compared to people the authorities like. We place too much emphasis on prosecutors getting convictions at all costs, and not enough emphasis on making sure prosecutors ensure justice is served.

[Noscitur a sociis]

If I were going to steelman it, I’d say that liberal justices have spent a couple generations subverting the law to try to reduce or eliminate capital punishment, and that conservative justices should take a strong position against that tendency: a justice willing to embrace these doctrines is therefore appropriately subject to criticism.

The problem is that I don’t think there’s a very sound basis to think that Barrett is actually objectionable in this regard.

[LawTalkingGuy]

This criticism also makes no sense in a case where Alito concurred. If Alito is concurring in favor of a defendant, in a GVR, in a capital case, on an AEDPA issue, the decision below was almost certainly glaringly wrong. There was no weak link to go after, the decision below just sucked and the State was never going to win.

[mulched]

That still leaves the question of why the case was relisted so many times before the GVR.

Some justices weren’t willing to let the case die, and some other justice was resistant to cert, but eventually gave in (i.e. the “weak link”).

The per curiam/concurrence/dissent combo leaves you playing Clue without enough cards.

SC tea-leaf-reading isn’t my thing, but I hate to take Blackman’s hobby/obsession away from him. His guess is as good as any here I suppose.

[JoeFromtheBronx]

He has a thing about Barrett.

It’s hard for me to tell how “weaker link” she is as compared to Roberts and Kavanaugh, especially outside special cases such as religious claims about using officiants at executions.

Clearly, Alito & Thomas are quite conservative on these issues. Gorsuch has also shown himself to be.

But “weakest link” means she is more likely to support the claim. It doesn’t mean the others never will. That hasn’t been the case.

[LawTalkingGuy]

He’s just extrapolating from her votes that aren’t in lockstep with his desires that she’s weak and therefore getable in “liberal” causes. He has no actual special insight into what she’ll do in any given case.

[Katall]

Question: Are Alito and Thomas pro-death penalty, or are they simply anti-reversing state convictions?

[JoeFromtheBronx]

I think on policy grounds it is fairly safe to say they are pro-death penalty & as especially as to Thomas, there is sizable material to work with to come to that conclusion.

[David Nieporent]

Right. Thomas doesn’t write highly technical opinions upholding death sentences in various cases — which would be easy to do in an AEDPA context; he writes long, lurid descriptions of the crimes themselves, even though that has nothing to do with the decision most of the time. He’s not saying, “This is the law, so the death penalty must be upheld;” he’s saying, “This SOB deserves it. Also, this is the law, so the death penalty must be upheld.”

[SRG2]

Precisely so.

[MaddogEngineer]

I guess it shouldn’t surprise that you don’t recognize Thomas trolling you. I suspect he does this precisely because most of these cases are brought by advocates who think the death penalty is unconstitutional. Not because there is a really a reversible error to be found. (Note I’m not saying no cases that reach the Court ever might be deserving.)

From his point of view, if you’re going to take the Court’s time with mostly bogus advocacy because you’re philosophically opposed to the death penalty, he’s going to return the favor by reminding everyone why there’s a case in the first place. Asked and answered, ad infinitum! Nobody is being charged by the word for his concurrences. It’s a free country. Unless you murder somebody obviously.

[SRG2]

Thomas isn’t trolling. He’s prosecuting. And if as you claim he is trolling, that is beneath even such little dignity as the SC yet possesses.

[grb]

Setting aside Professor Blackman’s obsession with Justice Barrett and the general principles involved, here are some specifics on this case:

“Among other things,” the opinion added, “the prosecution elicited testimony about Andrew’s sexual partners reaching back two decades; about the outfits she wore to dinner or during grocery runs; about the underwear she packed for vacation; and about how often she had sex in her car.”

During closing arguments in 2004, a prosecutor dangled Ms. Andrew’s thong underwear before the jury. She had packed the undergarment for a trip to Mexico a few days after her estranged husband was killed. The prosecutor said the item was strong evidence that Ms. Andrew had murdered her husband. “The grieving widow packs this to run off with her boyfriend,” he said, holding her underwear. “That’s enough,” he said. “Can’t twist the facts, folks. Can’t twist the evidence.”

Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, dissented. “Sex and marriage were unavoidable issues at Andrew’s trial,” Justice Thomas wrote, “and the state introduced a variety of evidence about her sexual behavior.”

That said, many people (including Thomas) think there was sufficient evidence for conviction regardless of the prosecution’s scuzzy misconduct. On the other hand, some believe the sentence was tainted by the prosecutor’s slut-shaming campaign.

https://www.nytimes.com/2025/01/21/us/supreme-court-sex-capital-case.html?searchResultPosition=1

[SRG2]

That said, many people (including Thomas) think there was sufficient evidence for conviction regardless of the prosecution’s scuzzy misconduct.

But the reason you grant people retrials in such circumstances is twofold. One, because it is not a remote possibility that this irrelevant evidence had an effect – and fwiw a prosecutor should be prevented from denying it on the logical grounds that if he didn’t think it had an effect why introduce it? – and two because it otherwise encourages a prosecutor’s option.

[jdgalt1]

I look forward to this leading quickly to SCOTUS overturning the nine figure judgment in Carroll v. Trump. That judge was certainly out to prejudice the jury when he allowed Stormy Daniels to testify.