Another Re-Argument
The Court today ordered re-argument in No. 04-1170, Kansas v. Marsh. Originally at issue in the case is the question of the constitutionality of Kansas’s death penalty statute, which provides that the death penalty will be imposed if the sentencing jury determines that the aggravating and mitigating factors are in equipoise; the Court also ordered additional briefing regarding its jurisdiction to consider the case.
Jason Tarricone’s pre-argument summary of the case is available here; you can read Lyle’s report on the argument here.
Marsh was apparently the only case set for re-argument today; Lyle reports that the case will be re-argued in April.
This one is a bit of a puzzle. If the Court had been cleanly split 4-4 on the result, one would think that they would have ordered rehearing earlier. Another possibility is that they have five or more for the result but were not able to get five to join one opinion, and now they have ordered rehearing in the hopes of getting an actual majority opinion.
Comment by Kent Scheidegger — March 24, 2006 @ 5:06 pm
The other possibility is one of the Justices (read Kennedy)switched sides and we went from a 5-3 (or even 6-2) grant of relief to a 4-4 split after the early drafts circulated. My bet is on the circulating drafts changing a vote and not a fractured plurality.
Comment by All Writs — March 24, 2006 @ 9:33 pm
Although making predictions from oral argument is always dicey, from my reading of the transcript, I find All Writs’ hypothesis very unlikely. I don’t see five votes for the defendant on the merits there. Note especially Justice Kennedy’s exchange with defense counsel on pp. 27-28. He does sometimes asking probing questions of arguments he ends up accepting, but this line of questioning reads more like a Justice who has already decided the other way.
Comment by Kent Scheidegger — March 25, 2006 @ 2:59 pm
Oops, editing glitch. “Asking” should be “ask” in the previous comment.
Comment by Kent Scheidegger — March 25, 2006 @ 3:02 pm
Likely scenario: At conference there was a 5-3 split in favor of the state. After opinions were circulated, one of the liberal members of the Court changed his mind (quite possibly Breyer), thus creating a 4-4 split. In any event, this is good news for death penalty proponents. I don’t see Alito signing on to a major departure from Walton.
Comment by CDebateAdmin — March 25, 2006 @ 4:26 pm
Of course, the above scenario leaves out O’Connor’s vote, so the initial vote was likely 6-3 in favor of the state.
Comment by CDebateAdmin — March 25, 2006 @ 9:47 pm
as one speculates about the Court’s decision to order reargument in Kansas v. Marsh, keep in mind that in addition to the substantive issue (does the Kansas death penalty scheme violate due process), the case presented two thorny procedural questions which complicate efforts to prognosticate. in particular, the Court had ordered briefing on: (1) whether the judgment below (of the Kansas Supreme Court) was adequately supported by grounds independent of federal law; and (2) whether the judgment below was a “final judgment.” if the justices answer “yes” to the first question OR answer “no” to the second question, the Supreme Court lacks jurisdiction.
at oral argument, there appeared to be little sympathy among the justices for the position that the Kansas death penalty scheme violated the 14th amendment. given the composition of the court and the tenor of oral argument, it seems hard to imagine that such a position garnered even four votes.
when it comes to procedural questions, however, justices’ views are harder to predict. while some justices may want to reach the substantive question, others may want to dismiss the case for lack of jurisdiction, still others may want to certify a question to the KSC because of ambiguity in the opinion below.
whatever the reason the Court ordered reargument – and contributors to this blog offer several possible scenarios – keep in mind: the disagreement among the justices may be at least in part about the procedural questions.
Comment by dm — March 26, 2006 @ 7:37 pm