Marathon Bomber Update
Last Friday, I noted the Marathon Bomber case in the Supreme Court and discussed how this is the perfect test case for President-elect Biden’s new-found opposition to the death penalty in all cases. If he really means all cases, he should demonstrate that opposition to the nation in a case that cries out for that penalty.
Today, the Supreme Court scheduled the Tsarnaev case for conference on January 8.
The Court could take the case up that day, or it might reschedule it for the next conference on January 15. In recent years, the Court has tended to reschedule a case at least once before actually taking it up. Perhaps that is so all nine chambers can give the case more scrutiny after it has been identified as a likely grant.
Along with the importance of the Question Presented, cases need to be examined for “vehicle problems” that make a particular case a poor vehicle for examining the question. Sometimes the question is arguably moot in that case. Sometimes there is another reason to question jurisdiction. Sometimes the case can be more readily resolved on an easier question. The Court wastes its limited resources when it takes a case for full briefing and argument only to dump it as “improvidently granted” when a previously undetected “vehicle problem” is discovered. At least two looks before taking a case is, well, provident.
So January 15 is a more likely grant date than January 8. Or it might be January 19, the first session day after the January 15 conference. But any of those dates would put the case before the Court on the merits before Mr. Biden is sworn in. Then the Biden Administration will have a federal capital case before the Supreme Court that is within the narrow class where people say “if we are going to have the death penalty at all, this is the case for it.”
It is not common for an incoming administration to reverse its position in a case pending before the Supreme Court, contradicting the position taken by the government earlier. But it does happen. I will be very interested in seeing what the Biden Administration does with this case.
The case is United States v. Tsarnaev, No. 20-443.