The Supreme Court on Wednesday, November 4, appeared divided over whether Texas death row prisoner Dexter Johnson may bring a second federal habeas claim that he is intellectually disabled, with several justices questioning the state's reading of the words "previously unavailable."
The case, Guerrero v. Johnson, No. 25-1003, asks whether Johnson's claim can pass through a narrow exception in the 1996 federal habeas law, which allows a second petition built on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." We laid out the background in our preview on Sunday. This account is drawn from the official argument transcript.
What Texas argued
Texas Solicitor General William R. Peterson told the Court that Atkins v. Virginia, the 2002 decision barring execution of people with intellectual disability, came down before Johnson's crimes and that Johnson relied on it in his first federal petition. "The rule of Atkins is not a new rule of constitutional law that was previously unavailable to him," Peterson said. In the state's view, what changed for Johnson was the diagnosis, after the 2013 DSM-5 manual, and a change in the facts has to meet a different test that his claim cannot meet.
Emily M. Ferguson, an assistant to the U.S. Solicitor General, argued for the United States on the state's side. She said Johnson's reading "would allow successive habeas applications anytime doctors change their understanding of intellectual disability."
Where the justices pushed back
Justice Elena Kagan suggested that the medical standards are part of the law of Atkins itself. "You might say that there's a kind of Atkins I and an Atkins II," she told Peterson. Later she put the case in plain terms: if a prisoner "was going to be laughed out of court, then, really, the rule was unavailable to me."
Justice Ketanji Brown Jackson argued that the state's reading cuts against what Congress wanted. As she understood the statute, Congress meant to give prisoners "one clear shot" at their constitutional claims, and under Texas's reading Johnson "will never get that opportunity."
Justice Sonia Sotomayor tested the state with a hypothetical rule barring execution of anyone over 70 and asked why a claim that only ripens later should be shut out. She also caught what she saw as a gap between Texas and the federal government on timing. "We'll both listen to the transcript," she told Ferguson. In rebuttal, Peterson said he fully agreed with the federal government's explanation.
Where they pushed the other way
Justice Clarence Thomas pressed Johnson's lawyer, Jeremy Schepers, on his claim that Atkins is still a new rule. "When does it ever stop being new?" Thomas asked, invoking Marbury v. Madison. Justice Amy Coney Barrett followed with the telephone: "I don't think anybody would describe the telephone as new today."
Justice Brett Kavanaugh read from a brief filed by Louisiana and 22 states warning that Johnson's position is "a recipe for eternal Atkins claims." Schepers answered that every prisoner still gets only one Atkins claim, and that Johnson is "the only individual who has been authorized to proceed" based on the 2013 manual. Barrett and Justice Samuel Alito both asked what would happen with a future DSM-6.
Kavanaugh also noted that the Court could decide the case on the "new rule" question alone, and Peterson agreed. That narrower path is worth watching, because it would leave the split among the federal appeals courts over "previously unavailable" unresolved.
Our count of the argument
We counted every speaking turn in the transcript. The argument ran from 10:04 a.m. to 11:03 a.m. By our count the nine justices spoke 108 times and said about 3,900 of the roughly 9,400 words spoken, or about 42 percent.
Justice Sotomayor spoke most often, 25 times. Justice Jackson spoke most, about 1,230 words, followed by Justice Kagan at about 950. Those three justices accounted for about 2,900 words, or about three quarters of everything the bench said. Justice Barrett spoke 15 times. Justice Thomas, who asked the first question of each lawyer, spoke 9 times, and Justice Alito 3 times. Turn counts include short interjections, and word counts are approximate because we counted the transcript as printed.
Talk is not a vote, and the most active questioners do not always win. But the pattern fits the split the case arrived with. The full Fifth Circuit declined to rehear Johnson's case by a vote of 9 to 7.
What happens next
A decision is expected by the end of June 2027. If Texas wins, Johnson's federal claim ends and the same reading would govern second motions by federal prisoners too. If Johnson wins, his claim can keep moving in the lower federal courts. Back home, death penalty appeals in Texas go to the Court of Criminal Appeals, which gets three new judges in January after Democrats swept the state's judicial races.
For another case this week about how prisoners use federal courts, read our account of Maxwell v. Dinis.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
