Supreme Court’s decision not to review capital case speaks volumes about its majority

The Supreme Court reviews only a small fraction of the petitions it receives. So the justices show their priorities not only by which cases they take up — like Donald Trump’s immunity bid and Jan. 6 rioter charges — but also by the issues they ignore.

Monday provided the latest example of that latter phenomenon, in a capital case from Texas. The case presented a due process issue that Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, said the court should’ve heard. It takes four votes to grant review on the nine-member court with six Republican appointees.

The issue in the case involved jury selection, a part of criminal proceedings that defendants have the right to attend. But a Texas court said that the defendant, Gustavo Tijerina Sandoval, didn’t have that right in a special pre-screening proceeding for state death penalty cases, at which a judge evaluated potential jurors who had received a summons for that case and been given details about the defendant and the charges against him.

Jackson wrote that the Texas ruling raised a “significant” question “about whether criminal defendants have a due process right to be present in such circumstances.” She wrote that “the answer is yes, and this Court should have granted the petition for certiorari to furnish that important holding.”

Not only was the defendant not present for those hearings, but “most of the exchanges between the prospective jurors and the court troublingly took place entirely off the record, without any recording or transcription, leaving little trace of what was said, who was excused, or why,” Jackson recalled in her dissent from the denial of review.

“The fact that Texas’s special venire process is available only in capital cases, which often receive abnormally extensive media coverage, makes matters worse,” the Joe Biden appointee went on. “In those circumstances, it is all the more likely that those prospective jurors who are called for a special venire prequalification process may have seen reporting on the case and formed opinions before trial.”

Other state and federal courts have recognized defendants’ rights in these situations. That means that there’s a split among the lower courts in this country over what the Constitution requires. The Supreme Court can clear up such splits but chose not to here, prompting the dissent. Jackson and Sotomayor are two of the court’s three Democratic appointees, with the third, Elena Kagan, being less likely of the three to speak out on criminal matters.

Monday’s denial is also notable in light of Sunday’s NBC News report on Justice Samuel Alito’s selective empathy for certain criminal defendants, which he expressed at recent hearings over Trump’s immunity bid and Jan. 6 rioters. Given the priorities of Alito and his GOP-appointed colleagues (no fans of death row appeals in particular), it’s an open question, subject to case-specific analysis, whether the Supreme Court would make matters worse for criminal defendants nationwide by weighing in on more issues than it does currently.

Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.

This article was originally published on MSNBC.com