For the second time in as many weeks, Chief Justice John G. Roberts Jr. sits on the side of Liberal Supreme Court justices to disagree over how the lower courts interpret the precedent of the Supreme Court.
On Tuesday, Roberts was stressed in saying that the Texas Court of Criminal Appeal "misapplied" a 2017 decision asking this court to reconsider its analysis as to whether death row inmate Bobby James Moore was intellectually handicapped and therefore could not be executed.
"On remand, the court repeated the same mistakes this court had previously sentenced," Roberts wrote, confirming the majority's conclusion Tuesday that Moore "is a person with a developmental disability."
Less than two weeks ago, Roberts joined the Liberals in defeating an abortion law in Louisiana almost identical to a law in Texas that the court had struck down in 2016.
In both initial decisions on abortion and capital punishment cases, Roberts had dissented. His actions are not a sign that he has changed his mind. the decision that Louisiana's law could not come into force at that time was not a decision on the merits of the law.
But they seem to indicate that the Chief Justice believes that lower courts must abide by Supreme Court precedents as long as they remain.
Moore's review by the Texas court "was not found to be consistent with this court's analysis last time," Roberts wrote in a separate opinion. "This is still not the case."
In an unsigned notice, the court ruled that the Texas court was wrong to reaffirm that Moore was mentally capable and could be executed. Three of the court's curators – Clarence Thomas JA, Samuel A. Alito Jr. and Neil M. Gorsuch – disagreed.
Alito wrote that the court's directions in the 2015 judgment in the Moore case were so vague that it was not surprising that the Texas court had a hard time following them. The correct answer, he said, would have been to send the case back with more specific instructions and not to make the decision.
"The Court's foray into fact-finding is a misguided departure from our usual practice," wrote Alito.
In a 5-to-3 decision, written by Judge Ruth Bader Ginsburg, the court dismissed the case of Bobby James Moore, who had killed a store employee, James McCardle, during a robbery in 1980 has been marked by conflicting opinions as to whether he is intellectually handicapped.
The Texas Court of Criminal Appeal finally ruled that it was nothing of the sort. But the Supreme Court concluded that the decision was wrongly based on outdated medical standards, limited IQ scores, and a list of factors unique to Texas, which Ginsburg described as "invention." . . not linked to a recognized source. "
The Texas court again examined Moore's intellectual abilities and found him competent.
But Tuesday, the majority of the Supreme Court was not impressed:
"We found in his opinion too many cases in which, with small variations, he repeats the analysis that we had previously found insufficient, and those same parts are essential to his final conclusion."
In the case of abortion in Louisiana, Roberts did not explain his reasoning. Instead, he joined the Liberal judges in complying with the law – which required abortion doctors to have admission privileges in neighboring hospitals – to come into force. Challengers had said that this would probably only leave an open clinic and a doctor capable of performing abortions.
Because of the suspension granted, it is likely that the court will then examine the merits of the law.
In that suspension decision of February 7, Thomas, Alito and Gorsuch were also dissenting, as was the new Judge Brett M. Kavanaugh.