With the long black robes, red velvet curtain and secret conference room, the Supreme Court can seem like a pretty weird place. But the court is never weirder than when the death penalty is being discussed, as it was in Wednesday's oral arguments.
On the surface, the justices must decide whether co-defendants can have their sentences determined in a single hearing, and whether a jury must be told that factors mitigating against a capital sentence don't need to be proved beyond reasonable doubt. But underneath these technical legal issues, something more profound is at stake: the immediate, personal involvement of the nine justices in the intentional killing of human beings.
I mention the detail to suggest how closely the justices are involved in administering the death penalty — and how that experience becomes part of the justices' professional routine. There are many fewer executions now than there were in the late 1990s, when I clerked, but reduced numbers don't, I think, reduce the psychological impact — possibly the reverse.
Take the question of whether it's fair to sentence co-defendants in the same proceeding. The Carr brothers, whose case is before the court, were convicted of a vicious crime spree in which they killed five people and almost killed a sixth. Reginald, the older brother, seems to have been leader. Jonathan, the younger brother, presented evidence at trial that made Reginald look worse than he is — in the hopes of getting the jury to sympathize with him as a follower who didn't deserve the death penalty. Reginald's lawyers have argued that this was unjust. Jonathan's lawyers, for that matter, argue that sentencing him alongside his brother must've prejudiced the jury against him.
The only way the death penalty will be struck down in the foreseeable future is if Justice Anthony Kennedy thinks it should be. Kennedy doesn't like to be pigeonholed as a bleeding-heart liberal, and given his landmark liberal vote for gay marriage in June, it's very unlikely that he wants to become a death penalty pioneer, at least for now.