When Mississippi prisoner Terry Pitchford’s appeal was argued at the Supreme Court in March, I explained how Justice Brett Kavanaugh could be key to the outcome.

Fast-forward to Thursday, when the Trump appointee emerged to lead a bare majority of justices siding with Pitchford, who had argued that Black people were illegally kept off the jury that sent him to death row. The capital case split the court 5-4, along lines that aren’t unprecedented but still are not ones we see every day, with Chief Justice John Roberts joining Kavanaugh alongside the court’s three Democratic appointees.

Although the decision is not a shock, it’s worth unpacking how it happened and what it says about the court.

While no result is guaranteed at the high court, Kavanaugh’s role was predictable. Even as a law student, he showed an interest in vindicating the jury rights at issue. On the bench, he authored the 2019 ruling in Flowers v. Mississippi, where the court sided with another death row prisoner, Curtis Flowers, whose prosecution was plagued by racism in jury selection. Indeed, the same state prosecutor, Doug Evans, tried both Flowers and Pitchford. The justices were already familiar with Evans’ work and had reason to think poorly of it.  

So it might have seemed at first glance that we were up for an easy redo of the Flowers case when the court granted review of Pitchford’s appeal.

But a complicating factor was that unlike Flowers’ case, which reached the justices directly through the state court system, Pitchford’s appeal came to the court through the procedural lens of a strict federal law known as AEDPA. Broadly speaking, the court’s GOP-appointed majority (Kavanaugh included) has routinely read the Antiterrorism and Effective Death Penalty Act to deny relief to state criminal defendants seeking relief in federal court.

Through that murkier lens, the legal question presented by Pitchford’s case was more complex than simply whether his rights were violated. The question was whether Mississippi’s top court unreasonably found that Pitchford had waived his right to rebut the prosecutor’s race-neutral justification for striking prospective Black jurors in his case.

A federal district judge, the George W. Bush appointee Michael Mills, said the state courts’ rejection of Pitchford’s jury bias claim was unreasonable. Yet a federal appellate panel of GOP appointees reversed that relief, ruling that the district judge was too hard on the state court. The panel noted that Mills found Pitchford’s lawyer had properly objected to Evans’ strikes, such that the defendant had not waived his rights. But the panel said that even if Mills was correct, it still wouldn’t merit relief for Pitchford under the strict AEDPA standard.

The Supreme Court reversed the appeals court on Thursday in siding with Pitchford. Kavanaugh’s opinion conceded that AEDPA is deferential to state courts. “But deference does not mean abdication,” he wrote in an opinion joined by Roberts and Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

“In light of the entire record in this case, we agree with the U. S. District Court that the Mississippi Supreme Court unreasonably applied the clearly established Batson precedents and unreasonably determined that Pitchford waived his opportunity to rebut the prosecutor’s asserted race-neutral reasons for the peremptory strikes of four black prospective jurors,” Kavanaugh wrote.

Batson refers to the high court’s 1986 ruling in Batson v. Kentucky, which said the Constitution bars prosecutors from striking prospective jurors based on race. The case was the subject of a Yale Law Journal article by Kavanaugh in 1989.

Justice Neil Gorsuch authored the dissent, joined by Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett. Gorsuch gave his fellow Trump appointee’s majority opinion a backhanded compliment of sorts, writing that “if the Court’s decision is mistaken, at least its impact is limited. Precisely because so many of our AEDPA precedents go unmentioned, I do not read today’s decision as calling any of them into question.”

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Gorsuch and Thomas had dissented from Kavanaugh’s Flowers ruling in 2019, and Barrett didn’t join the court until the following year, when she replaced the late Justice Ruth Bader Ginsburg, who was part of the 7-2 Flowers majority. So to the extent that Flowers was a rough guide for how Pitchford’s case would turn out, the 7-2 margin had arguably shrunk with Barrett’s replacement of Ginsburg. Alito’s joining of Kavanaugh in Flowers may have said more about the extreme nature of Flowers’ case, where a stunning pattern of jury discrimination developed over several trials.

Plus, there’s the procedural distinction that made Thursday’s four dissenters even more predisposed to rule against Pitchford. That distinction raised the question of whether Kavanaugh would side with Pitchford, and if so, who would be the fifth justice to form a majority in the likely event that the three Democratic appointees were already in hand.

That turned out to be Roberts, who previously joined the Democratic appointees in some capital cases, such as when he and Kavanaugh made possible another rare death row win, authored by Sotomayor, in 2023’s Cruz v. Arizona.

The limited impact of Thursday’s ruling beyond helping Pitchford, as Gorsuch put it, may have also helped persuade Roberts to join and perhaps made Kavanaugh feel safer about it too. In some ways, the unofficial question in Pitchford’s case all along seemed to be: How can the court that handed down the Flowers ruling not be seen as turning its back in this case, while also ensuring the court doesn’t lay the groundwork for any sort of pro-defendant revolution? Kavanaugh’s spare opinion, coming in at just over eight pages, may have accomplished that task.

As ever, and especially in capital cases, the way the majority and dissenting opinions framed the factual background can be read to bolster their respective legal arguments, even if only implicitly.

Gorsuch began his recitation by writing: “In 2004, Terry Pitchford and an accomplice robbed a store in Mississippi. At the end of it, the store’s owner, Reuben Britt, lay dead.” He continued: “A state-court trial followed in which a jury found Mr. Pitchford guilty of murder and sentenced him to death, concluding that he ‘actually killed R[e]uben Britt, … intended the killing of R[e]uben Britt … and … contemplated that lethal force would be employed.’”

Kavanaugh, meanwhile, told what almost amounts to a different story.

“The relevant factual background is as follows,” he wrote:

In 2004, two black teenagers, Terry Pitchford and Eric Bullins, robbed a grocery store near Grenada, Mississippi — a small town in Grenada County off I–55 in north-central Mississippi. Grenada County was then about 60 percent white and 40 percent black. At the time of the robbery in 2004, Bullins was 16, and Pitchford was 18. During the robbery, Bullins fired three shots at the store owner, who was a white man, and killed him. … Bullins, who fired the fatal shots, reached a plea agreement and received a 20-year sentence for the homicide. … Pitchford also fired a gun, which was loaded with rat shot. It has been disputed whether he shot at the store owner or fired his gun into the store floor. … In any event, for Pitchford, the State charged capital murder and sought the death penalty.

And to the point of the court not sparking any sort of broader pro-defendant revolution, look no further than the two other decisions the court handed down just before announcing the Pitchford ruling. Both were sentencing cases authored by Barrett that sided with the government over dissent from Democratic appointees.  

Jordan Rubin

Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.

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