While Supreme Court justices often clash sharply in the opinions that they write, those disagreements typically aren’t voiced in open court.
But the jurists bucked the trend on Wednesday, the Washington Examiner reported, as Elena Kagan got into a tense exchange with Trump-appointed Justice Brett Kavanaugh over a case involving the death penalty.
The verbal dust-up came as the nation’s highest court was hearing arguments related to the death sentence handed down to convicted terrorist Dzhokhar Tsarnaev.
“The only question remaining”
Tsarnaev was sentenced to execution for his role in the 2013 Boston Marathon bombing that left three people dead and many more seriously wounded.
However, the U.S. District Court of Appeals for the 1st Circuit moved last year to set aside his death sentence, arguing that his trial judge did not sufficiently consider the impact that pre-trial publicity would have on the jurors.
Also at issue was a decision to block jurors from considering whether Tsarnaev’s late brother and co-conspirator, Tamerlan, had committed prior homicides and thus was in a position to intimidate him.
“Just to be crystal clear,” the judges on the 1st Circuit wrote, “Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.”
The Biden administration is seeking to have Tsarnaev’s death penalty reinstated and contends that the judge did not err in keeping out evidence of prior killings by Tsarnaev’s brother.
“That’s the role of the jury”
According to the Examiner, it all led up to a debate on Wednesday that began when Justice Samuel Alito declared: “At a trial, you don’t have these mini-trials.”
Kagan responded by asking, “It’s the job of the jury, isn’t it, to decide on the reliability of the evidence, to decide whether it’s strong evidence or weak evidence that Tamerlan, in fact, played a leading role in those other gruesome murders?”
The clash with Kavanaugh came when the Trump appointee objected to the idea that evidence should have been presented if the lower court found it to be insufficient, saying that “the premise was assumed away.” Kagan reportedly shot back: “The premise was assumed away because that’s the role of the jury.”
Kavanaugh replied, “Well, I think it’s important to discuss the district court’s reasoning. And the district court said, ‘We don’t know what happened.’”