by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Members of the Supreme Court clashed Wednesday morning over the government’s bid to execute Boston Marathon bomber Dzhokhar Tsarnaev.
The justices heard arguments for 90 minutes over a federal appeals court decision that upheld Dzhokhar’s 2015 convictions but overturned the death sentence. The Biden administration is asking the High Court to reimpose the death penalty for Dzhokhar, even though Attorney General Merrick Garland has imposed a moratorium on federal executions.
Capital punishment has been a particularly divisive topic among the justices in recent years, and Wednesday’s case was no exception. The Court allowed the Trump administration to execute 13 federal inmates in 2020, sometimes over heated dissents from the liberal trio. And in a 2019 case, a five-justice majority warned courts to guard against delay tactics from death row inmates. Later this term, the Court will consider whether certain restrictions that Texas imposes on chaplains who accompany the condemned into the execution chamber are lawful.
Justice Amy Coney Barrett pressed government lawyer Eric Feigin to explain the government’s “end game” in Dzhokhar’s case, given that Garland has suspended federal executions. Feigin didn’t say that the Biden administration will put Dzhokhar to death. But he noted that the appeals process will take years, a tacit concession that some future attorney general could authorize Dzhokhar’s execution.
“The administration continues to believe the jury imposed a sound verdict and the court of appeals was wrong to upset that verdict,” Feigin said.
Wednesday’s arguments were spirited throughout and at times heated. At one point, Justices Elena Kagan and Brett Kavanaugh broke with usual form and engaged with each other directly, rather than direct questions toward the lawyers on hand.
A three-judge panel of the First U.S. Circuit Court of Appeals set aside Dzhokhar’s death sentence for two reasons. First, they said the trial judge didn’t adequately screen jurors for bias. Second, they said the judge was wrong to exclude evidence that implicated Dzhokhar’s older brother and co-conspirator. …