The callous injustice of Clarence Thomas and Samuel Alito 

As someone who has followed Richard Glossip’s case closely, I approached last week’s oral argument at the Supreme Court with a sense of anticipation. I expected the justices to show that they understood the gravity of the moment. After all, Glossip is on death row, and he shouldn’t be. 

Even the state of Oklahoma agrees. It concedes that Glossip, convicted in 1998 of a murder for hire, was wrongfully convicted of a capital crime. As state Attorney General Gentner Drummond told Reuters on Oct. 7, “If he (Glossip) is executed, I believe that it will be a travesty of justice.”

But when the justices had finished asking their questions and the lawyers were done with their answers, there seemed to be little recognition that Glossip’s fate was hanging in the balance.  

Slate’s Mark Joseph Stern got it right when he said that the question before the court in the Glossip case is “so bizarre that its very existence should serve as an indictment of capital punishment: Can courts force a state to execute a possibly innocent prisoner when the state itself doesn’t want to?” 

Bizarre or not, when the court gets around to deciding the case, it needs to face the fact that the Oklahoma legal system failed Glossip. Prosecutors withheld evidence that Justin Sneed, the star witness against Glossip, was taking medication for bipolar disorder. They also allowed him to lie on the witness stand. The prosecutors said nothing to the court or to Glossip’s lawyers about Sneed’s testimony.

Their failure to address these points is a Brady violation — a failure by the prosecutor to turn over evidence to the defense. And when the prosecution conceals a lie, as the Supreme Court has held, it violates a defendant’s due process rights.  

Such conduct not only clearly disregards prior rulings of the Supreme Court — it is incompatible with the ethical responsibilities of lawyers who represent the people of their state and prosecute crime.

This is not just idle speculation; it is what two different independent investigations concluded after months of study. And it is what Drummond concluded when he “confessed error” and joined Glossip in urging the Supreme Court to grant him a new trial and spare his life.  

During the oral argument, Justices Sonya Sotomayor and Elena Kagan seemed to agree with Glossip and Drummond. Barely concealing their disgust at the prosecutorial misconduct, they urged their colleagues on the court to defend the integrity of law, uphold its own precedents, and not let Oklahoma execute Richard Glossip.  

However, the court will do none of that if two of its arch conservatives, Clarence Thomas and Samuel Alito, are leaning the way they appeared to, based on the questions they asked and their history in capital cases. Unlike the liberal justices, they did not seem particularly concerned about what the prosecutors did or that Glossip might be innocent. Instead, Thomas and Alito seemed obsessed with all manner of legal issues other than what should be done to address the wrong in this case.

It all started when Thomas, once one of court’s most taciturn members, asked his first question. He did not focus on Glossip at all, but on the situation of the two prosecutors whose misconduct led to Glossip’s conviction and death sentence.  

Talking about the notes that they had not disclosed to the defense, Thomas seemed more concerned with protecting their reputation than in holding them accountable. 

He began by asking Seth Waxman, Glossip’s lawyer, “Mr. Waxman, you place quite a bit of weight on the note — notes from [the prosecutors in Glossip’s case], and from your opening statement, you clearly do not agree with them. Did you at any point get a statement from either one of the prosecutors?”  

Thomas suggested that the court could not know why they had not turned over the handwritten notes with potentially important evidence about Sneed and his credibility without asking them what their notes meant. 

Waxman answered “Yes,” he had gotten a statement. Acting as if he did not hear or believe what Waxman said, Thomas merely repeated his initial question, “Did you interview them?” 

Thomas worried that the reputations of the two prosecutors “are being impugned” and, as a result, “an interview of these two prosecutors would be central.” Waxman tried again, saying that one of the prosecutors had filed “an affidavit” and the other had been interviewed in the independent counsel investigations. 

But Thomas would not let go. Each time he asked a question during the oral argument, Thomas made the same point about how important it was to protect the reputation of the wayward prosecutors.

As Stern notes, “Thomas ate up so much of argument time asking about the prosecutors that Sotomayor finally interjected. ‘I think, under the law, anything in the prosecutor’s possession, which includes prison records, the knowledge is imputed to the prosecutor.’” Sotomayor also asked if the prosecutors had been interviewed, and Paul Clement, representing Drummond, “confirmed, for the dozenth time, that they were.”

Throughout the arguments, Sotomayor tried to get her colleagues to pay attention to the manifest injustice that had marked the handling of Glossip’s case. At times, she acted as if she were Glossip’s defense lawyer, asking a series of “yes” or “no” questions about the prosecutor’s obviously egregious misconduct and callous disregard of relevant Supreme Court precedents.  

When Alito jumped in, he let everyone know that he was irked by Sotomayor’s thorough and persistent questioning. “Well, Mr. Waxman,” he began, “Justice Sotomayor has taken us through the whole case, so maybe there’s not much left to discuss.” 

Then he got down to business. Like a schoolboy eager to show he’d done his homework, Alito cited various places in the Oklahoma Court of Criminal Appeals decision that explained why Drummond’s confession of error was not significant. Then, showing his hand, Alito went on to claim that even if the court accepted all of Glossip’s allegations as true, “the facts do not rise to the level of a Brady violation.”  

Alito suggested that under the so-called “harmless error rule,” knowing about Sneed’s mental issues and perjury would not have changed the result in Glossip’s case. “The facts,” Alito suggested, “are not sufficient to establish by clear and convincing evidence that, but for the alleged error, no reasonable fact-finder would have found the applicant guilty of the underlying offense or would have rendered the penalty of death.” 

It is hard to see how anyone could think that securing a death sentence by illegal means is “harmless error.” But, at the end of the day, Alito used his time and questions to send a message to Glossip: Even if you win your argument about the prosecutors, you will lose anyway. 

As is often the case when the Supreme Court hears oral arguments, it is hard to predict what the final decision will be. This is also true in Glossip’s. case.  

Amy Howe, writing at SCOTUSblog, says there is a real prospect of a 4-4 tie (Justice Neil Gorsuch recused himself from the case). That “would leave the state court’s ruling against Glossip in place.”  

But Drummond said he expects “a 5-3 ruling in favor of a new trial for Glossip.” 

However the case comes out, Wednesday’s proceeding offered a chilling reminder that Thomas and Alito want to undo our constitutional tradition of protecting those who, like Richard Glossip, are wronged by the law.  

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. His views do not necessarily reflect those of Amherst College.