WASHINGTON — A majority of the Supreme Court on Tuesday appeared uncomfortable with the standards that Texas's top appeals court uses for determining whether a person on trial for murder is intellectually disabled and, hence, ineligible for the death penalty.
The Supreme Court had declared intellectually disabled people ineligible for the death penalty back in 2002. The justices followed up on that opinion in 2014 with a further ruling that limited states from applying a strict IQ-point cutoff in determining who is to be considered intellectually disabled.
The underlying question before the justices on Tuesday was how much discretion is to be given to states in determining whether people are intellectually disabled.
While Texas does not have a strict IQ-point cutoff like that struck down in the 2014 case, another portion of the state's standards are at issue in Bobby James Moore's case.
Texas Solicitor General Scott Keller — who appears regularly before the justices — was fighting an uphill battle on Tuesday.
Lawyers for Moore, on death row for a 1980 murder, argue that the standard used by Texas in assessing adaptive behaviors when making an intellectual disability determination — the so-called Briseño factors, after an earlier case — are "nonclinical" and "anti-scientific." More than that, Moore's lawyers say, the Texas Court of Criminal Appeals, the state's top appeals court for criminal cases, bars trial judges from using the current medical standards — requiring them to use the Briseño factors.
As such, the Briseño factors effectively make it easier for the state to execute people by limiting who will be found to be intellectually disabled, Clifford Sloan, a partner at Skadden Arps, argued on Tuesday for Moore.
Clinical standards, though, must inform states' decisions on intellectual disability unless there is a "sound reason" for departing from them, Sloan said. Here, he noted, Texas only used the factors in the capital context and not in other circumstances.
There is "no question," Sloan said, that "Texas is very extreme and stands alone" in its application of the Supreme Court's intellectual disability death penalty prohibition cases.
Justices Elena Kagan and Sonia Sotomayor pressed Keller, the Texas lawyer, hard on whether the Texas standard would make it possible for the state to execute intellectually disabled people — at times being joined by Justice Ruth Bader Ginsburg, who appeared to be fighting off a cold.
While Keller pushed back, saying that the Briseño factors were a way of applying the clinical standards, even he later acknowledged the state's view that states do not need to "wholesale" adopt clinical standards.
At one point, Justice Anthony Kennedy — who wrote the court's 2014 decision — asked whether the Briseño factors included all people with intellectual disabilities.
Keller said no. While he followed up by noting that the Texas courts had found people ineligible for the death penalty under the Briseño factors, Kennedy pressed the question back to the effect of Texas's decision to use the factors. Justice Stephen Breyer later followed up on this, asking why Texas chose to write the standards it chose — pointing to language from the Texas court suggesting that the decision was made to help the court reach a decision on who Texans would think should be executed.
Keller pushed back by saying that, although that issue was discussed in Briseño, the Texas court had not answered that "normative" question.
Nonetheless, Breyer later focused on the focus of the two prior Supreme Court decisions on their "appeal to technical definitions" as a means of reducing arbitrariness in the application of the rule barring the execution of intellectually disabled people.
Chief Justice John Roberts and Justice Samuel Alito appeared to sense the direction of the court was to overturning Moore's death sentence. The pair focused much of their questions on whether the technical question presented to the court in the filings from Moore's lawyers — about the prohibition on use of current medical standards — was the actual argument Sloan was making or whether he actually was just arguing about whether the Briseño factors could be used.
Sloan responded that the Briseño factor questions were woven into the question about the prohibition on the use of current medical standards by the Texas courts.
Justice Clarence Thomas asked no questions, as is his usual practice.
The Supreme Court gives no timeline for when it will reach a decision, although decisions are usually issued in all cases for a given term by the end of June.