I tried desperately yesterday to find something worth blogging about but my searches were all in vain. Today, however, the Court’s ruling in three death penalty cases is just asking to be blogged about.

In Smith v. Texas, the Court, in an opinion written by the ever-swinging Justice Kennedy, held that Texas’s Court of Criminal Appeals had misapplied the ‘harmless error standard’ to Smith’s case on remand from the federal courts years earlier. The jury in Smith’s trial was could have reasonably “believed it was not permitted to consider Smith’s relevant mitigating evidence … it appears Smith is entitled to relief under the state harmless-error framework.”

Justice Souter penned a brief concurring opinion that is reprinted in its entirety:

I join the Court’s opinion. In some later case, we may be required to consider whether harmless error review is ever appropriate in a case with error as described in Penry v. Lynaugh, 492 U. S. 302 (1989). We do not and need not address that question here.

Justice Souter’s opinion highlights the courts willingness to give less narrow review of the harmless error standard at a later date. The Court may have been unable to give that broad review at this time because of the weak majority that they were able to maintain. The four liberal justices (countering the four horsemen perhaps?) were probably forced to give an incredibly narrow ruling in order to swing Justice Kennedy over to their side.

Justice Kennedy was once again given the opportunity to pen the majority opinion in a tight 5-4 split on the Court. As the most senior Associate Justice, Justice Stevens surely granted Justice Kennedy this responsibility in order to get him in his good graces.

More on this case and the other two later today.


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