In a 6-3 decision that divided the justices along strict liberal-conservative lines, the U.S. Supreme Court on Friday overruled a court-of-appeals ruling that had removed the federal death penalty facing convicted Boston Marathon bomber Dzhokhar Tsarnaev. Neither the lower-court ruling nor the SCOTUS decision called into question the conviction of Tsarnaev for the lethal 2013 terrorist attack that killed three people and injured many others. (His older brother, Tamerlan, who was also a participant in the attack, was killed in a shoot-out with police three days after the bombing.) The decision could create a dilemma for President Joe Biden, who opposes the death penalty. But his own Justice Department sought the very action SCOTUS took, even though Attorney General Merrick Garland ordered a moratorium on federal executions last July.
The majority opinion in United States v. Tsarnaev was written by Justice Clarence Thomas, who briskly dismissed two errors by the trial judge found by the lower court (inadequate questioning of prospective jurors about exposure to pretrial publicity and exclusion of evidence about separate murders allegedly committed by Tamerlan) as reasonable and within the judge’s discretion. The other five conservative justices agreed, though Justice Amy Coney Barrett (joined by Justice Neil Gorsuch) filed a concurring opinion objecting generally to appeals-court supervision of legitimate trial-judge discretion.
Justice Stephen Breyer (joined by justices Sonia Sotomayor and Elena Kagan) dissented, arguing that the evidence suggesting that Tamerlan was very much the senior partner in the brothers’ murderous enterprises was highly germane to considerations of sentencing and should have been admitted by the trial judge. But Sotomayor and Kagan did not join in Breyer’s comments reiterating his past doubts that the death penalty can be administered fairly.
Now Biden must make clear whether he recognizes any exceptions for “heinous crimes” from his general position (articulated during the 2020 campaign) favoring legislation to end the federal death penalty. Garland’s moratorium on executions isn’t permanent but more of a pause, which is probably why the DOJ didn’t reverse its Trump-era position asking for the reimposition of the death penalty for Tsarnaev. Trump was, unsurprisingly, a big fan of the death penalty, which his administration carried out about as often as it could. At a time when Republicans are again blaming Democratic weakness for a nationwide upward trend in murders, it may be tough for Biden to stick strictly to his principles. Gallup showed support for the death penalty reaching a half-century low in 2021, but supporters still represented 54 percent of respondents, and it’s unclear if some opponents would make an exception for mass killings by terrorists. Expect Biden to get some pressure from people on both sides of this ancient debate.