To uphold the rule of law, US Supreme Court must act in Texas death penalty case

As a former judge on the U.S. Court of Appeals for the District of Columbia Circuit, I know how difficult it can be to apply decisions of our nation’s highest court with which I disagreed. And yet the job of a judge is to uphold the rule of law. The importance of doing so goes beyond the merits of any individual case. It is a basic precept of our judicial system that “[f]ederal and state courts are absolutely bound by vertical precedents,” as 12 wise federal and state judges, including current Justices Neil Gorsuch and Brett Kavanaugh, wrote in “The Law of Judicial Precedent” in 2016. Regrettably, in a matter of life and death, the top criminal court in my home state of Texas does not appear to be following this foundational constitutional principle.

In 2020, in a case involving Texas death row prisoner Terence Tramaine Andrus, the U.S. Supreme Court ruled that Andrus’s trial lawyer had performed deficiently during his 2012 sentencing proceeding by failing to investigate and challenge the State’s case and by failing to investigate or present extensive mitigating evidence about Andrus’s background of abuse, poverty and mental illness.

The High Court remanded the case back to the Texas Court of Criminal Appeals (CCA) to consider whether this deficient performance had led to “prejudice” in the jury’s imposition of the death sentence — that is, whether there is a reasonable probability that even one juror would have opted for life rather than death if they had heard the extensive mitigating evidence that was available but not presented at trial. The justices emphasized that the proceedings on remand should not be “in a manner inconsistent with this opinion.” 

In a narrowly divided 5-4 decision issued on May 19, 2021, the CCA determined Andrus was not prejudiced by his attorney’s deficient performance and his death sentence should stand. In their opinion, the lower court judges rejected the Supreme Court’s conclusions and ignored the justices’ directive for how to conduct a proper prejudice analysis. 

To take one obvious example, the U.S. Supreme Court had found the mitigating evidence ignored by Andrus’s trial counsel to be “compelling.” The CCA majority explicitly disagreed and found it “not particularly compelling.”

The esteemed judges in the majority in Andrus surely were operating in good faith in their reexamination of the evidence. Nevertheless, as the dissenting opinion of four CCA judges notes, they were “bound by the Supreme Court’s interpretation” and were “not free to ‘re-characterize’ that evidence contrary to the United States Supreme Court’s holding.” For this reason, the Supreme Court justices should again accept review of Andrus’s case and summarily reverse this latest ruling. 

I believe in the constitutionality of the death penalty and favor it in appropriate cases. To preserve the integrity of the death penalty, however, we must observe the constitutional constraints on this ultimate sentence. In our system, all courts must faithfully adhere to Supreme Court precedent, especially on matters of life and death.

In this instance, a narrow majority of Texas judges may have believed that the Supreme Court was wrong about Andrus. But this does not matter, as I know from my own experience as an appellate judge. The state judges had an inviolable duty to ensure its proceedings were consistent with the High Court’s decision. 

As then-U.S. Court of Appeals for the District of Columbia Circuit Judge Brett Kavanaugh put it: “As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court decisions.”

For our system to work, the Supreme Court must make sure its rulings are respected and faithfully applied. In this case, I hope the Supreme Court will correct the Texas court’s fundamental error, especially since Andrus faces the most extreme punishment our government can impose. Ignoring this departure from binding authority would be inimical to the fundamental principles of our constitutional system and the necessity of judicial restraint.

Kenneth W. Starr served as U.S. solicitor general from 1989 to 1993 and U.S. Circuit Judge for the United States Court of Appeals for the District of Columbia Circuit from 1983 to 1989.