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.
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Prediction: If Garland is the pick for AG, DOJ will take the position that, while the President is personally opposed to the death penalty, he recognizes that it is constitutional, and the Department believes it was correctly applied in this case. Accordingly, the contrary judgment of the First Circuit should be reversed. I would make a much weaker prediction, but to the same effect, if any of the other candidates for AG gets the nod.
If, on the other hand, the Department confesses “error” as to its original litigating position in favor of the DP, I think the Court will appoint an amicus to present the case for overturning the First Circuit and re-instating the original capital sentence. This is pretty much what happened in 1999, when the Clinton DOJ confessed error in the Fourth Circuit’s upholding Section 3501 in the Dickerson case (the Clinton administration thought Miranda was a constitutional ruling that could not be adjusted by statute, and therefore Section 3501 could not stand, contrary to the Fourth Circuit’s view). Our friend Prof. Paul Cassell was appointed by the Court to present the argument DOJ had abandoned. (Some here might remember that DOJ’s abandonment of Section 3501 was the cause of my resignation from the Department).
I think Paul would be an excellent choice to reprise that role in this case should DOJ bail out. But for as outstanding as Paul is, the best amicus for these purposes would be………………….(drum roll)…………………….Kent Scheidegger.
We wait with bated breath to see who the AG nominee is. So far, the Cabinet choices have largely been more moderate than I had feared, so there is hope.
As for appointed amici, as much as I appreciate your confidence, the Court does not seem to want to appoint amici from advocacy organizations on either side of the ideological aisle. They have a penchant for choosing lawyers from big name law firms, who may or may not know much about criminal law.