Supreme Court Justices Elena Kagan and Brett Kavanaugh had a brief but tense exchange during oral arguments Wednesday in a case over whether a death sentence should be reinstated for Boston Marathon bomber Dzhokhar Tsarnaev. FILE – In this April 23, 2021, file photo members of the Supreme Court pose for a group photo at the Supreme Court in Washington. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett. (Erin Schaff/The New York Times via AP, Pool, File) Erin Schaff/AP
Kagan snipes at Kavanaugh in rare moment of tension during Boston Bomber case
Kate Scanlon October 13, 03:44 PM October 13, 04:24 PM
Supreme Court Justices Elena Kagan and Brett Kavanaugh had a brief but tense exchange during oral arguments Wednesday in a case over whether a death sentence should be reinstated for Boston Marathon bomber Dzhokhar Tsarnaev.
The Biden administration asked the Supreme Court to reinstate a death sentence for Tsarnaev after a lower court overturned it last year, contradicting President Joe Biden’s campaign promise to end federal executions and the Justice Department’s current moratorium on federal executions.
The lower court overturned the death sentence, citing a procedural error by a trial judge who said the court did not sufficiently question prospective jurors about their media consumption and did not allow the jury to consider evidence that Tsarnaev’s older brother Tamerlan may have played a role in a triple murder prior to the 2013 attack. That would have aided the defense’s case that Dzhokhar was radicalized by Tamerlan.
During Wednesday’s oral arguments, the justices examined whether permitting that evidence to the court would prompt new questions about its reliability.
“At a trial, you don’t have these mini-trials,” said Justice Samuel Alito. “If a person’s on trial for murder X, you don’t have a trial about murder Y and murder Z.”
Kagan countered jury members are the ones who should have determined if the evidence was reliable. She asked Eric Feigin, deputy solicitor general, that if the “entire case rests on the notion that the evidence just wasn’t strong enough,” how should the district court “evaluate, much less decide, that question?”
“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?” she asked.
Justice Brett Kavanaugh appeared to take issue with the idea that the evidence should have been included if the lower court deemed it insufficient, arguing the “premise was assumed away.”
Kagan then interjected, “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.’”
The Supreme Court is known for maintaining public collegiality between members.
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