A few quick thoughts on Marsh

A quick read of the Supreme Court’s death penalty work in Marsh (opinion here) triggers a lot of capital punishment thoughts.  Here are a few quick observations on Marsh: 

1.  The reargument and 5-4 vote makes clear that Justice Alito was a swing vote.  It is fun to speculate which opinion Justice O’Connor might have joined (and perhaps even more fun to speculate which opinion Harriet Miers might have joined).

2.  Justice Thomas’ opinion for the Court seems to avoid any unduly broad language about the meaning or contours of the Court’s capital jurisprudence (although perhaps I missed some sharp dicta needles in the Marsh haystack). 

3.  Justice Scalia and Justice Stevens have an interesting dialogue in their separate opinions about the Court’s certiorari choices, which echoes some of the ideas previously developed in this post.

4.  Justice Scalia and Justice Souter use this case as an opportunity to engage in an extended debate about wrongful convictions and the death penalty.  Beyond the fact that Marsh is a very strange setting for innocence talk, shouldn’t these Justices be devoting more time to addressing legal issues and less to engaging in off-topic factual debates?

5.  Justice Souter baldly asserts at the end of his dissent that “false verdicts … are probably disproportionately high in capital cases.”  Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four “liberal” Justices might actually believe it is true.