Justice Brett Kavanaugh is a Republican. He served in a Republican White House, typically votes with the Court’s other Republicans, and even sometimes [sides with President Donald Trump](https://www.supremecourt.gov/opinions/25pdf/24-1287_4gcj.pdf) in major cases that divide the Republican Party. He’s not the sort of person you’d expect to carry a torch for a liberal cause for nearly four full decades. But, well, he did. In Kavanaugh’s majority opinion in [_Pitchford v. Cain_](https://www.supremecourt.gov/opinions/25pdf/24-7351_jiel.pdf), which was handed down on Thursday, the justice more or less implemented a proposal for how to prevent racism from infecting jury selection that he [first proposed in a 1989 piece](https://yalelawjournal.org/pdf/Kavanaugh_pawetk33.pdf) that he published when he was still a law student. To be clear, Kavanaugh’s _Pitchford_ opinion doesn’t really break much new ground. It involves a straightforward violation of [_Batson v. Kentucky_](https://supreme.justia.com/cases/federal/us/476/79/) (1986), the Supreme Court’s most important precedent governing race in jury selection, and rules in favor of the person on death row who brought this fairly clear-cut violation to the Supreme Court’s attention. Still, _Pitchford_ was a 5-4 decision, with four of Kavanaugh’s fellow Republicans joining a dissent by Justice Neil Gorsuch. So the decision could have easily come down the other way if one of the Republican justices hadn’t developed a liberal approach to _Batson_ before he started his legal career. Sometimes, even Supreme Court justices — arguably the most highly vetted political appointees in the entire federal government — contain multitudes. Again, _Pitchford_ is a fairly easy case. In a less ideological Supreme Court, the incarcerated person at the heart of this case might have won unanimously. But the decision does suggest that left-leaning advocates can sometimes prevail in this Court by appealing to the idiosyncratic views of some of the Republican justices. In 1989, Kavanaugh [published a “note” in the Yale Law Journal](https://yalelawjournal.org/pdf/Kavanaugh_pawetk33.pdf). Notes are student-authored works of legal scholarship, which often examine an important recent legal development. High-achieving law students frequently choose to write these notes because it gives them a published exemplar of their own legal writing skills that they can share with potential employers. The surprising twist is that in his 1989 note, Kavanaugh — who, of course, would go on to become one of the most powerful Republicans in the United States — chose to advocate for a cause that is ordinarily associated with liberals. Published three years after the Supreme Court handed down _Batson_, Kavanaugh’s note, which is titled “Defense Presence and Participation: A Procedural Minimum for _Batson v. Kentucky_ Hearings,” argued that the Court’s recent decision protecting against racism in jury selection should be read to include certain procedural protections for criminal defendants. In criminal trials, both the prosecution and the defense often get a limited number of “[peremptory challenges](https://archive.thinkprogress.org/clarence-thomas-flowers-mississippi-batson-juries-6fb2bde2a085/),” which they can use to remove a potential juror from the jury pool for virtually any reason. These peremptory strikes may be used to remove a juror because the prosecutor doesn’t like the juror’s haircut, because the defense counsel thinks a juror looked at their client suspiciously, or because counsel doesn’t like having jurors whose name begins with the letter “M.” But the Constitution prohibits prosecutors from removing a juror because of that juror’s race. As Kavanaugh explains in his _Pitchford_ opinion, _Batson_ sets up a three-step process to determine whether prosecutors did, in fact, remove a juror for impermissible racial reasons. After the defense counsel objects to the removal of a particular juror or group of jurors (step one), the prosecutor typically must give a race-neutral explanation for why they wanted the juror removed (step two). At step three, Kavanaugh writes, “[defense counsel has an opportunity to rebut the prosecutor’s race-neutral reason as pretextual](https://www.supremecourt.gov/opinions/25pdf/24-7351_jiel.pdf),” and then the judge has to decide who is telling the truth. Kavanaugh’s 1989 note argues that courts [must ensure that this third step is complied with](https://yalelawjournal.org/pdf/Kavanaugh_pawetk33.pdf); he wrote at the time that “the defense should have an opportunity to rebut the prosecutor’s reasons before the trial judge decides whether to allow the prosecutor’s peremptories.” His opinion in _Pitchford_ makes a very similar argument. In _Pitchford_, prosecutors in a Mississippi murder case used their peremptory challenges to remove four of five potential Black jurors from defendant Terry Pitchford’s jury pool. Defense counsel objected on _Batson_ grounds, and the prosecutor gave race-neutral explanations for targeting these jurors. (The prosecution claimed that one juror was removed because they arrived late to court, two because they had brothers convicted of violent offenses, and one because he, like the defendant, was a young father.) But the trial judge never gave defense counsel an opportunity to rebut these explanations. The judge simply deemed the prosecutor’s explanations acceptable and moved on. This, Kavanaugh writes in _Pitchford_, is not allowed. In a sentence that mirrors the argument he made in 1989, the justice writes that “after a prosecutor asserts race-neutral reasons for a peremptory strike, the defense counsel [must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons](https://www.supremecourt.gov/opinions/25pdf/24-7351_jiel.pdf)—that is, the reasons were pretextual.” To be clear, it’s not exactly a stretch for Kavanaugh to argue that, when _Batson_ said that courts must use a three-step process to resolve jury discrimination claims, all three steps are mandatory. At most, _Pitchford_ makes explicit something that was already implicit in US law. But _Pitchford_ was complicated by a federal law, the [Antiterrorism and Effective Death Penalty Act of 1996](https://www.congress.gov/bill/104th-congress/senate-bill/735) (AEDPA), that makes it difficult for convicted offenders to challenge their convictions or sentences in federal court if they were first tried in state court. To prevail in such a federal challenge, Pitchford must show that state courts handed down a decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Given this high bar placed in front of people who wish to challenge state-level convictions or sentences, a federal judge who wants to leave the state court’s decision in place will almost always be able to find a way to do so. And Gorsuch’s opinion does just that. The dissent’s primary argument is that Pitchford waived his _Batson_ argument because, while his lawyers raised it in the trial court, they did not provide enough detail about how, specifically, the trial judge violated _Batson_ when they raised this objection. As a general rule, lawyers may not raise an argument on appeal unless they also raised that argument in the trial court. That’s not a very good argument, because, as Kavanaugh explains, defense counsel raised their _Batson_ argument multiple times at trial. And, after one of these objections, the trial judge “explicitly assured Pitchford’s counsel that the _Batson_ objection was preserved.” So it would have been odd — and could have potentially antagonized the judge — if defense counsel had elaborated further on their _Batson_ argument after the judge effectively told them to drop the issue and take it up in the appeals courts. But the fact remains that Pitchford barely prevailed in the Supreme Court. And, if not for the fact that Kavanaugh appears to have developed the view that all three prongs of _Batson_’s process are mandatory in law school, this case would have likely come out the other way. Liberal victories aren’t exactly common in this Court, but they also aren’t so rare that they are unimaginable. In this case, one of the justices appears to have formed an opinion on a politically contentious issue before he fully embraced the broader worldview that he needed to have in order to score political appointments in a Republican administration. And that means that, at least in cases involving jury discrimination, criminal defense lawyers will sometimes find a sympathetic bench in the Supreme Court. See More: * [Criminal Justice](https://www.vox.com/criminal-justice) * [Life](https://www.vox.com/life) * [Policy](https://www.vox.com/policy) * [Politics](https://www.vox.com/politics) * [Race](https://www.vox.com/race) * [Supreme Court](https://www.vox.com/scotus)

The US supreme court again rejected a push backed by Donald Trump to overhaul Missouri’s congressional maps in an effort to hand [Republicans](https://www.theguardian.com/us-news/republicans) an edge in November’s midterm elections. Its latest ruling, [after days of confusion](https://www.theguardian.com/us-news/2026/sep/09/missouri-redistricting-map-appeal), comes less than two months before the pivotal midterm elections in which control of the narrowly divided US House of Representatives could be determined by a handful of seats. Following conflicting decisions that spanned four courts, Wednesday’s ruling appeared to set the stage for the state to use its old electoral maps this year. The end result does not completely end confusion for Missouri’s voters, who cast ballots in primary elections using the new map, butwill vote in November on the older map. “The state, the election apparatus, had no business going forward with the primaries under that bill, under that circumstance,” said David F Walbert, a [storied](https://www.theguardian.com/commentisfree/2026/jun/17/trump-voting-rights-midterms) voting rights attorney in Georgia, who has argued voting rights cases before the US supreme court. “The problem that we’re dealing with today is 100% the result of the state machinery that created this.” At the behest of the president, Missouri’s Republican-dominated legislature redrew district lines last year to net one additional seat for Republicans in the US House of Representatives. The new maps carve up a district representing Kansas City, long held by Emanuel Cleaver, a Democrat. After Missouri’s governor, Mike Kehoe, signed new congressional district boundaries into law in September 2025, the legislation faced immediate challenges, including a push by People Not Politicians, a campaign group, which gathered more than 300,000 signatures to force a statewide referendum on whether to keep or repeal the new map. But Missouri’s secretary of state, Denny Hoskins, a Republican, sought to use the new map anyway. The Missouri supreme court certified the referendum for the ballot on 3 September over Hoskins’s objections, ruling the new district lines would not take effect until 2027 – after the referendum vote – and that the 2025 redistricting did not comply with the law. The legal argument over redistricting pitted Missouri’s court, which is “not exactly full of foreigners that are some kind of wild liberals from California or New York”, Walbert said, against state leaders auditioning for the president’s attention. The court’s unanimous decision speaks to the clarity of state law on referendums. The law “suspends completely the effective date of the law that has been subjected to the referendum”, Walbert said. The state attorney general, Catherine Hanaway, also a Republican, immediately appealed this decision. Justice Brett Kavanaugh, who oversees emergency hearings from the eighth circuit, refused to stay the Missouri supreme court ruling on Tuesday. But federal district judge Stephen Clark made a ruling only minutes later, in a separate federal case, requiring Hoskins to use the new Republican-friendly map – compounding confusion over November’s elections. Hoskins then said he would follow Clark’s order, and a federal appeals court panel declined to block that order. On Thursday morning, Kavanaugh again ordered the state to comply with the Missouri supreme court ruling, blocking the new maps. “Today’s decision ensures Missouri voters will not be forced to vote under a gerrymandered map pushed through by the state legislature last year and then cynically imposed on voters by the secretary of state, in violation of the state constitution,” said Mark Gaber, senior director of redistricting at Campaign Legal Center. “Voters deserve to have their voices heard and to have fair representation in Congress. The Missouri supreme court unanimously affirmed that principle, and now, so has the [US supreme court](https://www.theguardian.com/us-news/us-supreme-court).” The Missouri supreme court meanwhile ruled on Thursday afternoon that Hoskins, the secretary of state, had been in contempt of court after continuing to use new maps that the judges had ruled invalid. But chief justice W Brent Powell also noted that Hoskins had purged himself of the contempt after declaring that the order by Kavanaugh had ended the controversy over which map to use in November elections, and would direct local election officials to use the 2022 map.