SCOTUS reinstates California death sentence in 5-4 vote

As detailed by SCOTUSblog and How Appealing, today the Supreme Court issued its first major death penalty ruling in an argued case: Brown v. Sanders, No. 04-980 (S. Ct. Jan 11, 2005) (available here). Sanders is a 5-4 decision, authored by Justice Scalia, which overturns a Ninth Circuit decision which had reversed a death sentence.

Here is an AP report on the Sanders ruling, and Lyle Denniston summarizes the decision this way: the Court “ruled that a death sentence may sometimes stand even though the jury based it in part on a factor that was later found to be invalid…. If the aggravating factor at issue was part of the process of narrowing the class of individuals subject to the death penalty, the Court said, a sentence is not unconstitutional if that factor is struck down but others remain to serve the narrowing function.”

I am pretty sure the specifics of Sanders are unlikely to have a broad impact on capital sentencing realities or review (although I have not yet had a chance to read the opinions closely for significant dicta).  But this ruling provides an interesting and telling indication of the likely development of death penalty jurisprudence under the Roberts’ court:

First, consider that CJ Roberts’ serves as a swing vote in Sanders by joining Justice Scalia’s majority opinion to reinstate a death sentence.  Though this is only one vote, it suggests that CJ Roberts’ votes in capital cases may be quite similar to the votes of his predecessor, CJ Rehnquist. 

Second, Sanders is the first 5-4 ruling during Justice O’Connor’s peculiar service as a lame duck Justice, and Justice O’Connor likewise serves as a swing vote in Sanders by joining Justice Scalia’s majority opinion to reinstate a death sentence.  I had an inkling that the Court might try this Term to avoid entirely any 5-4 dispositions in which Justice O’Connor was a deciding vote.  Sanders shows that the Court is comfortable with Justice O’Connor casting a decision vote as a lame duck in at least one case.  I cannot help but speculate about whether the Court felt that, in a capital case, it was especially inappropriate to delay disposition for a new arrival or perhaps felt that it was inevitable that Justice O’Connor’s replacement would not vote any differently in this case.

Third, beyond the transition issues, the 5-4 ruling in this capital case suggests that CJ Roberts will not always be able to bring significantly greater consensus to the Supreme Court’s sentencing jurisprudence.  (Recall that, as discussed here, an important theme the hearings for nominee John Roberts was whether he might be able to forge more consensus within the Court. Senate Judiciary Committee Chair Arlen Specter, in his prepared opening statement to those hearings, said wishfully that the “next chief justice will have the potential … to bring consensus to the court which has made a hallmark of 5-4 decisions, many of which are inexplicable.”)

Finally, if one wants to be especially cynical or simply believes in foreshadowing, it seems worth noting that the Court handed down Sanders on a day that the Court is hearing a major death penalty innocence case, House v. Bell.