Davis v. Ayala

{{good article}} {{Use American English|date=September 2025}} {{Use mdy dates|date=September 2023}} {{Infobox SCOTUS case |Litigants=Davis v. Ayala |ArgueDate=March 3 |ArgueYear=2015 |DecideDate=June 18 |DecideYear=2015 |FullName=Ron Davis, Acting Warden, Petitioner v. Hector Ayala |USVol=576 |USPage=257 |ParallelCitations=135 S. Ct. 2187; 192 L. Ed. 2d 323 |Docket=13–1428 |OralArgument=https://www.oyez.org/cases/2014/13-1428 |Prior=Convictions and sentences upheld, ''People v. Ayala'', 24 Cal. 4th [https://law.justia.com/cases/california/supreme-court/4th/24/243.html 243], 6 P.3d 193, 99 Cal. Rptr. 2d 532 (2000); rehearing denied (Cal., November 15, 2000); cert. denied, ''Ayala v. California'', 532 U.S. 1029 (2001); ''habeas corpus'' denied, ''Ayala v. Ayers'', [https://www.govinfo.gov/content/pkg/USCOURTS-casd-3_01-cv-01322/pdf/USCOURTS-casd-3_01-cv-01322-5.pdf 02cv1322-IEG(PCL)] (S.D. Cal., February 17, 2009); certificate of appealability granted in part, denied in part, ''Ayala v. Wong'', 2009 WL 1357416 (S.D. Cal., May 13, 2009); reversed and remanded, 693 F.3d [https://www.govinfo.gov/content/pkg/USCOURTS-ca9-09-99005/pdf/USCOURTS-ca9-09-99005-0.pdf 945] (9th Cir. 2012); withdrawn and superseded, 730 F.3d [https://www.govinfo.gov/content/pkg/USCOURTS-ca9-09-99005/pdf/USCOURTS-ca9-09-99005-2.pdf 831] (9th Cir. 2013); amended and superseded on denial of rehearing ''en banc'', 756 F.3d [https://www.govinfo.gov/content/pkg/USCOURTS-ca9-09-99005/pdf/USCOURTS-ca9-09-99005-3.pdf 656] (9th Cir. 2014); cert. granted, ''Chappell v. Ayala'', 574 U.S. 958 (2014). |Subsequent=Rehearing denied, ''Davis v. Ayala'', 576 U.S. 1087 (2015); affirmed on remand, ''Ayala v. Davis'', 813 F.3d [https://www.govinfo.gov/content/pkg/USCOURTS-ca9-09-99005/pdf/USCOURTS-ca9-09-99005-4.pdf 880] (9th Cir. 2016). |Holding=When a state trial court has reviewed for harmlessness under ''Chapman v. California'' federal courts must apply AEDPA § 2254(d). |Majority=Alito |JoinMajority=Roberts, Scalia, Kennedy, Thomas |Concurrence=Kennedy |JoinConcurrence= |Concurrence2=Thomas |Concurrence3= |JoinConcurrence3= |Dissent=Sotomayor |JoinDissent=Ginsburg, Breyer, Kagan |Overturned previous case= |LawsApplied=Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) }}

'''''Davis v. Ayala''''', 576 U.S. 257 (2015), was a case in which the United States Supreme Court upheld a death sentence of a Hispanic defendant despite the fact that all Blacks and Hispanics were rejected from the jury during the defendant's trial.<ref>{{ussc|name=Davis v. Ayala|volume=576|year=2015|docket=13-1428}}, 135 S. Ct. 2187, 2191.</ref>

The case involved a habeas corpus petition submitted by Hector Ayala, who was arrested and tried in the late 1980s for the alleged murder of three individuals during an attempted robbery of an automobile body shop in San Diego, California in April 1985.<ref>{{cite web |title=Davis. Ayala |website=Oyez |url=https://www.oyez.org/cases/2014/13-1428}}</ref> At trial, the prosecution used peremptory challenges to strike all Black and Hispanic jurors who were available for jury service. The trial court judge allowed the prosecution to explain the basis for the peremptory challenges outside the presence of Ayala's counsel and did not give the defense an opportunity to respond. Ayala was ultimately sentenced to death, but he filed several appeals challenging the constitutionality of the trial court's decision to exclude his counsel from the hearings.<ref name=:4/>

In a 5–4 opinion written by Justice Samuel Alito, the Supreme Court held that even if the trial court committed error, the error was harmless and that Ayala did not suffer any actual prejudice.<ref name=Davis2208/> Justice Sonia Sotomayor wrote a dissenting opinion in which she argued that Ayala's sentence should be reversed because the exclusion of Ayala's counsel from the hearings "substantially influenced the outcome" of the case.<ref name = Sotomayor2211>''Davis'', 135 S. Ct. at 2211 (Sotomayor, J., dissenting).</ref> Additionally, Justice Anthony Kennedy wrote a separate concurring opinion in which he questioned the propriety of Ayala's placement in solitary confinement.<ref name=:5>{{cite news |last=Wallace-Wells |first=Benjamin |title=The Movement Against Solitary Confinement |date=August 12, 2015 |work=New York Intelligencer |url=https://nymag.com/intelligencer/2015/08/movement-against-solitary-confinement.html}}</ref> In response, Justice Clarence Thomas wrote a one-paragraph concurring opinion in which he stated that Ayala's accommodations were "far sight more spacious than those in which his victims ... now rest".<ref name = Thomas1>''Davis'', 135 S. Ct. at 2210 (Thomas, J., concurring).</ref>

Commentators have described the case as "important" and note that will likely have a "significant effect" on similar cases in the future.<ref>See, e.g., Brandon Garrett, [http://www.law.virginia.edu/html/news/2015_sum/scotus-decisions-comments.htm#davis ''UVA Law Faculty Comment on Supreme Court Decisions''], {{smallcaps|University of Virginia School of Law}}; Steve Vladeck, [http://www.scotusblog.com/2015/06/opinion-analysis-how-habeas-courts-should-assess-harmless-error-in-a-procedural-batson-challenge/ ''Opinion analysis: How habeas courts should assess harmless error in a procedural Batson challenge''], {{smallcaps|SCOTUSblog}} (Jun. 18, 2015, 2:33 PM).</ref> However, some analysts have described the outcome as "particularly unjust".<ref name = Caplan>Lincoln Caplan, [http://www.newyorker.com/news/news-desk/the-destruction-of-defendants-rights ''The Destruction of Defendants' Rights''], {{smallcaps|The New Yorker}} (June 21, 2015).</ref>

Justice Kennedy's concurring opinion also received significant coverage from the media,<ref name=:2/> and some analysts suggested that solitary confinement may become a "new battleground"for Justice Kennedy<ref name = Ford>Matt Ford, [https://www.theatlantic.com/politics/archive/2015/06/kalief-browder-justice-kennedy-solitary-confinement/396320/ ''Justice Kennedy Denounces Solitary Confinement''], {{smallcaps|The Atlantic}} (June 18, 2015).</ref> One commentator described Justice Kennedy's concurring opinion as "the single most surprising and heartening development of the term".<ref name = Lederman>Marty Lederman, [http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_surprises_obamacare_marriage_jerusalem_passport_arizona_judicial.html ''Supreme Court Breakfast Table''], {{smallcaps|Slate}} (July 2, 2015).</ref>

==Legal Background==

===''Batson'' challenges=== {{main|Batson challenge}}

In ''Batson v. Kentucky'', the Supreme Court of the United States held that a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution occurs when prosecutors use peremptory challenges to exclude jurors on the basis of race.<ref>{{cite web |title=''Batson v. Kentucky'' and Federal Peremptory Challenge Law |date=September 20, 2022 |website=Congressional Research Service |url=https://www.congress.gov/crs_external_products/R/PDF/R47259/R47259.2.pdf |page=2}}</ref> If a defendant alleges that a prosecutor challenged a prospective juror on the basis of that juror's race (a process known as a "''Batson'' challenge"), trial courts will conduct a three-part analysis of the peremptory challenge in question: "First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination."<ref>''Davis'', 135 S. Ct. at 2199.</ref>

===Habeas statute=== When individuals are convicted for crimes under state law, certain post-conviction processes are available to challenge the constitutionality of their convictions in state and federal courts. By granting a writ of habeas corpus, a federal court may overturn the conviction of a state court if it finds the trial was unfair or constitutionally defective.<ref>{{cite web |title=Federal Habeas Corpus: A Legal Overview |website=Congressional Research Service |url=https://www.congress.gov/crs_external_products/RL/PDF/RL33391/RL33391.6.pdf}}</ref><ref name=:2>{{cite news |last=Bazelon |first=Emily |title=The Law That Keeps People on Death Row Despite Flawed Trials |date=July 17, 2015 |work=The New York Times Magazine |url=https://www.nytimes.com/2015/07/17/magazine/the-law-that-keeps-people-on-death-row-despite-flawed-trials.html}}</ref>

However, in the wake of the Oklahoma City bombing, the United States Congress passed the Antiterrorism and Effective Death Penalty Act ("AEDPA")<ref>Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified, in part, at 28 U.S.C. § 2254).</ref> in 1996 to modify federal habeas corpus procedures.<ref>Stephen R. Reinhardt, [http://michiganlawreview.org/wp-content/uploads/2015/05/113MichLRev1219_Reinhardt.pdf ''The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences''], 113 {{smallcaps|Mich. L. Rev.}} 1219, 1224 (2015) (discussing origins of the Antiterrorism and Effective Death Penalty Act).</ref> Under the AEDPA's new standards, when a prisoner's claim has been adjudicated in state court, that individual's petition for habeas corpus shall not be granted unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States".<ref>{{USCSub|28|2254|d|1}}</ref><ref>Claudia Wilner, [http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-77-5-WIlner.pdf ''"We Would Not Defer to That Which Did Not Exist:" AEDPA Meets the Silent State Court Opinion''], 77 {{smallcaps|N.Y.U. L. Rev.}} 1442, 1445 (2002) (discussing the history of habeas corpus in the United States).</ref>

In 2011 the Supreme Court decided ''Harrington v. Richter'', requiring AEDPA's deferential standard be applied under § 2254(d) to any claim that has already been "adjudicated on the merits".<ref name=Davis2198>''Davis'', 135 S. Ct. at 2198.</ref><ref name=:4>{{cite web |last=Vladeck |first=Steve |title=Argument preview: A Ninth Circuit capital habeas case with a complicated doctrinal twist |date=February 27, 2015 |website=SCOTUSblog |url=https://www.scotusblog.com/2015/02/argument-preview-a-ninth-circuit-capital-habeas-case-with-a-complicated-doctrinal-twist/}}</ref>

==="Harmless error" after AEDPA=== The Supreme Court of the United States has identified a narrow range of errors that require automatic reversal; for all other errors, the decision of a lower court will be upheld if the error was harmless.<ref>''Davis'', 135 S. Ct. at 2197 (citing ''Glebe v. Frost'', 574 U.S. 21 (2014)).</ref> In 2007, the United States Supreme Court held in ''Fry v. Pliler'' that, as a "precondition" for relief under the AEDPA, habeas petitioners must demonstrate evidence that a state court's error resulted in "actual prejudice". In 1967, the Supreme Court ruled in ''Chapman v. California'' that a constitutional error will only be considered harmless when the court is "able to declare a belief that it was harmless beyond a reasonable doubt".<ref>''Davis'', 135 S. Ct. at 2197 (quoting ''Chapman v. California'', {{ussc|volume=386|page=18|pin=24|year=1967}}).</ref>

Additionally, when reviewing federal habeas corpus petitions, a federal court may only grant relief if there is "grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict".<ref>''Davis'', 135 S. Ct. at 2198 (quoting ''O'Neal v. McAninch'', 513 U.S. 432, 436).</ref>

After ''Fry'' federal courts review for harmless error under the ''Brecht v. Abrahamson'' standard only when state courts have not reviewed for harmless error.<ref>''Davis'', 135 S. Ct. at 2198.</ref> The Supreme Court has also ruled that when reviewing a state court's determination of harmlessness under ''Chapman'', the AEDPA mandates that the reviewing court may not grant a petition for habeas corpus "unless ''the harmlessness determination itself'' was unreasonable".<ref>''Davis'', 135 S. Ct. at 2199 (citing ''Fry v. Pliler'', 551 U.S. 112 at 119 (emphasis in original)).</ref><ref name=:1/>

==Arrest and Trial of Hector Ayala== Hector Ayala was convicted of committing multiple murders arising from an attempted robbery of an automobile body shop in San Diego, California in April 1985.<ref name=:0/>

During jury selection, the prosecution used peremptory challenges to strike all Black and Hispanic jurors who were available for jury service. Ayala's attorney's filed a series of ''Batson'' challenges to contest the prosecution's use of peremptory challenges, but the judge ruled that the prosecution had valid reasons for excluding those jurors that were not based on race.<ref>''Davis'', 135 S. Ct. at 2194.</ref> The trial judge permitted the prosecution to explain the basis of their peremptory challenges in a closed hearing, outside the presence of Ayala's counsel, "so as not to disclose trial strategy".<ref>''Davis'', 135 S. Ct. at 2193.</ref> The denial of Ayala's Sixth Amendment right to counsel would later form the basis of his federal habeas claim.<ref name=:0/> The jury returned a sentence of death for the three murder convictions, and the trial judge entered a judgment consistent with the jury's sentence.<ref name=Davis2195>''Davis'', 135 S. Ct. at 2195.</ref>

On direct appeal, the California Supreme Court upheld Ayala's conviction and sentence. The state court said the trial court's ruling that allowing a closed hearing was a harmless error under state law, and that if federal error occurred, it would similarly be a harmless error under federal law.<ref>{{cite web |title=People v. Ayala (CCAP) |website=Central California Appellate Program |url=https://capcentral.org/case_summaries/people-v-ayala/}}</ref><ref name=Davis2195/> Ayala subsequently filed a petition for habeas corpus, which was denied by a district court judge in 2006.<ref>''Davis'', 135 S. Ct. 2197.</ref> On appeal, the United States Court of Appeals for the Ninth Circuit granted Ayala's habeas petition in 2013. The Antiterrorism and Effective Death Penalty Act applied, and as neither the state court nor district court had decided whether the closed hearing violated federal law, the Ninth Circuit ruled on the merits, holding that Ayala was denied due process at trial and that the trial court's error was not harmless.<ref>''Davis'', 135 S. Ct. 2196; {{cite court |litigants=Ayala v. Wong |vol=756 |reporter=F.3d |opinion=656 |pinpoint= |court=9th Cir. |date=2013 |url=https://caselaw.findlaw.com/court/us-9th-circuit/1658366.html |access-date=2018-11-30 |quote=}}</ref><ref name=:0>{{cite web |last=Vladeck |first=Steve |title=Argument analysis: AEDPA deference, Brecht deference, and a Lackey tangent in a California capital case |date=March 3, 2015 |website=SCOTUSblog |url=https://www.scotusblog.com/2015/03/argument-analysis-aedpa-deference-brecht-deference-and-a-lackey-tangent-in-a-california-capital-case/}}</ref>

In 2014, the Supreme Court of the United States granted certiorari to review the Ninth Circuit's decision under AEDPA § 2254(d) and ''Brecht''.<ref>{{cite web |title=13-1428 Davis v. Ayala |website=supremecourt.gov |url=https://www.supremecourt.gov/qp/13-01428qp.pdf}}</ref><ref name=:0/>

==Supreme Court== [[File:Samuel Alito official photo.jpg|thumb|right|upright=1.0|In his majority opinion, Justice Samuel Alito (pictured) held that Ayala did not suffer "actual prejudice".<ref>''Davis'', 135 S. Ct. at 2207</ref>]]

===Arguments===

The state of California argued that ''Richter'' should apply in this case to prevent federal courts from setting aside state judgments under AEDPA's deferential standard. Ayala's defense argued that ''Richter'' only applied to ineffective assistance of counsel claims.<ref name=:4/>

===Opinion of the Court=== In his majority opinion, Justice Samuel Alito held that the exclusion of Ayala's counsel during the ''Batson'' hearings was harmless error.<ref name=Davis2200>''Davis'', 135 S. Ct. at 2200.</ref> Justice Alito emphasized that under federal law, prisoners are not entitled to habeas relief unless they can demonstrate "actual prejudice".<ref>''Davis'', 135 S. Ct. at 2197.</ref> Additionally, Justice Alito noted that under the Antiterrorism and Effective Death Penalty Act, federal courts should be "highly deferential" to state courts when a habeas claim has been "adjudicated on the merits" in state court".<ref>''Davis'', 135 S. Ct. at 2198 (citing 28 U.S.C. § 2254(d); ''Harrington v. Richter'', {{ussc|volume=562|page=86|pin=103|year=2011}}).</ref><ref name=:1/>

Applying these standards to the facts of this case, Justice Alito ruled that Ayala did not suffer any actual prejudice and that the California Supreme Court's opinion "represented an entirely reasonable application of controlling precedent". Consequently, Justice Alito held that the Ninth Circuit's ruling should be reversed and that the case should be remanded for reconsideration in light of the Supreme Court's decision.<ref>''Davis'', 135 S. Ct. at 2208.</ref>

===Concurring opinions=== Although he noted that his support for the majority's opinion was "unqualified", Justice Anthony Kennedy wrote a separate concurring opinion in which he questioned the propriety of solitary confinement. Justice Kennedy observed that since 1989, Ayala had spent more than twenty five years in solitary confinement. <ref name=Davis2208>''Davis'', 135 S. Ct. at 2208 (Kennedy, J., concurring).</ref>

Although the conditions of Ayala's confinement were not established in the record, Justice Kennedy wrote that "it is likely [he] has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone".<ref>''Davis'', 135 S. Ct. at 2208 (Kennedy, J., concurring) (citing ''Wilkinson v. Austin'', {{ussc|volume=545|page=209|pin=218|year=2005}}; Amnesty International, Entombed: Isolation in the U. S. Federal Prison System (2014)).</ref>

Justice Kennedy wrote that "[t]he human toll wrought by extended terms of isolation long has been understood, and questioned, by writers and commentators" and that solitary confinement "bears a further terror and peculiar mark of infamy".<ref>''Davis'', 135 S. Ct. at 2209 (Kennedy, J., concurring) (citing ''In re Medley'', {{ussc|volume=134|page=160|pin=170|year=1890}}).</ref> Justice Kennedy conceded that "in some instances temporary, solitary confinement is a useful or necessary means to impose discipline and to protect prison employees and other inmates", but that courts should ultimately determine "whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them".<ref>''Davis'', 135 S. Ct. at 2210 (Kennedy, J., concurring).</ref>

Justice Clarence Thomas wrote a separate, one-paragraph concurring opinion to respond to Justice Kennedy's concurring opinion. He wrote that the "accommodations in which Ayala is housed are a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest". Justice Thomas also noted that because Ayala's victims were all 31 years of age or younger, "Ayala will soon have had as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth".<ref name = Thomas1/>

===Justice Sotomayor's dissenting opinion=== Justice Sonia Sotomayor wrote a dissenting opinion in which she was joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer, and Justice Elena Kagan.<ref>''Davis'', 135 S. Ct. at 2191 (Sotomayor, J., dissenting).</ref> Justice Sotomayor argued that the exclusion of Ayala's counsel from the ''Batson'' hearings "substantially influenced the outcome" of the case and that "grave doubt exists as to whether [the exclusion] was harmless".<ref>''Davis'', 135 S. Ct. at 2211, 2218 (Sotomayor, J., dissenting).</ref> She critiqued Justice Alito's methodological approach, arguing that "[t]he proper inquiry is not whether the trial court’s determination can be sustained, but whether it may have been different had counsel been present". Considering the evidence presented in this case, Justice Sotomayor concluded that there "is neither a factual nor a legal basis for the Court’s confidence" that the prosecution's use of peremptory challenges was race neutral. She argued that in light of "the strength of Ayala’s prima facie case", the Court should have upheld the Ninth Circuit's ruling.<ref name = Sotomayor2211/>

==Commentary and analysis== {{multiple image | caption_align=center | header_align=center | align =right | width =150 | image1=Anthony Kennedy official SCOTUS portrait.jpg | alt1=Justice Anthony Kennedy | image2=Vasily Perov - Портрет Ф.М.Достоевского - Google Art Project.jpg | alt2=Fyodor Dostoyevsky | footer =In his concurring opinion, Justice Anthony Kennedy (pictured left) cited Fyodor Dostoyevsky's (pictured right) observation that "[t]he degree of civilization in a society can be judged by entering its prisons".<ref>''Davis'', 135 S. Ct. at 2210 (Kennedy, J., concurring) (citing The Yale Book of Quotations 210 (F. Shapiro ed. 2006)).</ref> Justice Kennedy wrote that "[t]here is truth to this in our own time".<ref name=:5/> }} Following the release of the Court's opinion, commentators described ''Davis v. Ayala'' as "an important case raising claims about jury selection and harmless error".<ref>Brandon Garrett, [http://www.law.virginia.edu/html/news/2015_sum/scotus-decisions-comments.htm#davis ''UVA Law Faculty Comment on Supreme Court Decisions''], {{smallcaps|University of Virginia School of Law}}.</ref> Steve Vladeck wrote that "[g]oing forward, the dispute between the majority and dissent will have an especially significant effect on cases in which trial courts conduct ''Batson'' proceedings ''ex parte''".<ref>Steve Vladeck, [http://www.scotusblog.com/2015/06/opinion-analysis-how-habeas-courts-should-assess-harmless-error-in-a-procedural-batson-challenge/ ''Opinion analysis: How habeas courts should assess harmless error in a procedural Batson challenge''], {{smallcaps|SCOTUSblog}} (Jun. 18, 2015, 2:33 PM).</ref> Hadar Aviram wrote that "[t]he Court was willing to accept, as a basic premise, that Ayala's constitutional rights were violated; but that is not enough to merit a reversal".<ref>Hadar Aviram, [http://prawfsblawg.blogs.com/prawfsblawg/2015/06/davis-v-ayala-post-conviction-review-of-batson-harmless-error-and-a-surprising-dignity-opinion-from-.html ''Davis v. Ayala: Post-conviction review of Batson, Harmless Error, and a Surprising Dignity Opinion from Justice Kennedy''], {{smallcaps|PrawfsBlawg}} (June 18, 2015).</ref> In his review of the case for ''The New Yorker'', Lincoln Caplan described the Court's opinion as "particularly unjust" because the Court "had the opportunity to hold a state prosecutor to account for using trumped-up reasons to justify racial discrimination in a jury selection" but failed to do so.<ref name = Caplan/>

===Commentary about Justice Kennedy's concurring opinion=== Much of the initial commentary about the case focused on Justice Kennedy's concurring opinion.<ref name=:1>See, e.g., Steve Vladeck, [http://www.scotusblog.com/2015/06/opinion-analysis-how-habeas-courts-should-assess-harmless-error-in-a-procedural-batson-challenge/ ''Opinion analysis: How habeas courts should assess harmless error in a procedural Batson challenge''], {{smallcaps|SCOTUSblog}} (Jun. 18, 2015, 2:33 PM) (noting that the case was "noteworthy for an unusually testy exchange between two of the Justices in the majority").</ref> Writing for the ''Los Angeles Times'', David G. Savage described Justice Kennedy's opinion as "unusual" and "a rare instance of a Supreme Court justice virtually inviting a constitutional challenge to a prison policy".<ref>David G. Savage, [http://touch.latimes.com/#section/-1/article/p2p-83819189/ ''Justice Kennedy practically invites a challenge to solitary confinement''], {{smallcaps|Los Angeles Times}} (June 19, 2015).</ref> Marty Lederman described Justice Kennedy's concurring opinion as "the single most surprising and heartening development of the term".<ref name = Lederman/> Matt Ford wrote that "Kennedy’s critique of solitary confinement in Davis came without warning or fanfare" and that "[s]olitary confinement is a new battleground for the Court’s second-longest serving justice, but not a surprising one".<ref name = Ford/>

Although he suggested Justice Kennedy's concurrence may be "more consequential" than Justice Harry Blackmun's dissent in ''Callins v. Collins'',<ref>''Callins v. Collins'', {{ussc|volume=510|page=1141|year=1994}} (Blackmun, J., dissenting) ("From this day forward, I no longer shall tinker with the machinery of death.").</ref> Mark Joseph Stern described Justice Kennedy's concurrence as "myopic", noting that "large chunks of the 'legal academy' in the 'public' were aware—and outraged—by the practice long before Kennedy condemned it".<ref>Mark Joseph Stern, [http://www.slate.com/articles/news_and_politics/jurisprudence/2015/06/supreme_court_and_solitary_confinement_justice_anthony_kennedy_finds_it.html ''20 Years in a Windowless Cell''], {{smallcaps|Slate}} (June 19, 2015).</ref> Dahlia Lithwick wrote that even though "Kennedy may not come around on the death penalty" and rule it unconstitutional, "after reading his own words in ''Ayala''—he probably should".<ref>Dahlia Lithwick, [http://www.slate.com/articles/news_and_politics/jurisprudence/2015/07/will_kennedy_overturn_the_death_penalty_his_views_on_solitary_confinement.html ''Fates Worse Than Death?''], {{smallcaps|Slate}} (July 14, 2015).</ref> In an interview with Harvard Law School dean Martha Minow, Justice Kennedy explained that when he was in the Army, he was locked in a cell for four hours and "slightly tortured".<ref>Marcia Coyle, [http://www.nationallawjournal.com/id=1202740827841/Justice-Anthony-Kennedy-Loathes-the-Term-Swing-Vote?slreturn=20151129134631 ''Justice Anthony Kennedy Loathes the Term Swing Vote''], {{smallcaps|The National Law Journal}} (October 27, 2015) (internal quotations omitted) (noting that this was apparently part of Justice Kennedy's "combat training").</ref> Justice Kennedy remarked that "[a]fter four hours in a cell, I was going mad. These people are in, some for 40 years. It drives people mad and we don’t even think about it. We’ve got to do something about it".<ref>Marcia Coyle, [http://www.nationallawjournal.com/id=1202740827841/Justice-Anthony-Kennedy-Loathes-the-Term-Swing-Vote?slreturn=20151129134631 ''Justice Anthony Kennedy Loathes the Term Swing Vote''], {{smallcaps|The National Law Journal}} (October 27, 2015) (internal quotations omitted).</ref>

==References== {{bots|deny=InternetArchiveBot}} {{Reflist|30em}}

==External links== *{{caselaw source | case=''Davis v. Ayala'', {{ussc|576|257|2015|el=no}} | findlaw=https://caselaw.findlaw.com/us-supreme-court/13-1428.html | googlescholar = https://scholar.google.com/scholar_case?case=651942663214964557 | justia =https://supreme.justia.com/cases/federal/us/576/13-1428/ | oyez =https://www.oyez.org/cases/2014/13-1428 | other_source1 = Supreme Court (slip opinion) (archived) | other_url1 =https://web.archive.org/web/0/https://www.supremecourt.gov/opinions/14pdf/13-1428_1a7d.pdf }} *[http://www.scotusblog.com/case-files/cases/chappell-v-ayala/ Case information] from SCOTUSblog

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