On a Big Issue, Little Is Known
Activists on both the left and right have focused intently on every shred of possible evidence that Supreme Court nominee John G. Roberts Jr. would vote to overrule the court's 1973 Roe v. Wade decision that recognized a constitutional right to abortion.
But there has been far less attention to an equally contentious issue that takes up far more of the justices' time each term than abortion: capital punishment. Every death sentence in the country comes before the court not once but twice or more: first on direct appeals, the vast majority of which are brushed aside, and then on habeas corpus challenges claiming constitutional violations at trial or sentencing.
And the substitution of Roberts for Justice Sandra Day O'Connor could make a difference on the death penalty.
O'Connor, who helped draft Arizona's death penalty law as a state senator, was no death penalty abolitionist. In her early years on the Supreme Court, she played a key role in curtailing constitutional appeals by death row inmates.
Recently, however, O'Connor seemed to grow more skeptical of the states' administration of capital punishment. In speeches, she expressed concerns that innocent defendants may have been sentenced to death, and she questioned the quality of defense counsel available to those facing capital charges.
These views were reflected in her votes on the court. Though O'Connor had refused to declare capital punishment for the moderately mentally retarded unconstitutional in 1989, she joined a six-justice majority of the court in reaching that result in 2002. In the court's last term, she joined the four most liberal justices in a 5 to 4 ruling that required defense lawyers to dig more aggressively for information that might persuade a jury to choose life imprisonment instead of the death penalty at the sentencing phase of a capital case.
But the available information on Roberts's views about capital punishment is sketchy at best.
In 1980-1981, he served as a law clerk for then-Justice William H. Rehnquist, who strongly advocates removing barriers to rapid capital sentencing -- but in that role Roberts was an aide, not a decision-maker.
During his career in the administrations of Ronald Reagan and George H.W. Bush, he had little to do with criminal justice issues.
As a lawyer in Washington, Roberts played a brief supporting role in one case his law firm handled for free on behalf of a death row inmate in Florida.
He has faced no capital punishment-related cases in his two years as a judge on the U.S. Court of Appeals for the D.C. Circuit.
Perhaps Roberts's most comprehensive statement on the death penalty came in response to questions from Sen. Russell Feingold (D-Wis.) at his 2003 confirmation hearing for the seat he now holds on the D.C. Circuit.