An unusual concurrence by Justice Anthony Kennedy in a death penalty habeas decision Thursday triggered an unusually blunt and unsympathetic reply by Justice Clarence Thomas on an issue that was not even part of the case before them: solitary confinement.
Both justices agreed completely with the high court’s 5-4 decision in Davis v. Ayala. The majority, led by Justice Samuel Alito Jr., held that the trial judge’s exclusion of Ayala’s defense attorney from a hearing on whether the prosecutor had made impermissible race-based peremptory jury challenges was harmless error. Justice Sonia Sotomayor, joined by justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, dissented.
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