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Sudden DeathAmerican support for the death penalty is diminishing—except on the Supreme Court.

By Dahlia LithwickPosted Saturday, Feb. 10, 2007, at 6:42 AM ET

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But, partly as a result of the changes wrought by the Bush administration in the composition of the court, there now seems to be a subtle hardening in favor of the death penalty.

When he worked in the Reagan White House, Chief Justice John Roberts wrote a memo suggesting the high court could cut its caseload by "abdicating the role of fourth or fifth guesser in death penalty cases." One decision from last term highlights that worldview. The case involved a man who had been convicted of rape and murder, then later produced DNA evidence raising doubt that he was the culprit. The court, by a 5-3 vote, felt this new evidence warranted a new hearing. But Roberts led the dissenters, who felt it wasn't enough for the new evidence to cast doubt on the defendant's conviction; to grant relief, the evidence had to prove he "was actually innocent" before a hearing at which his evidence could be fully developed. And in argument in one case this term, Roberts questioned the need for a trial judge to specifically guide jurors about how to weigh evidence that defendants introduce to show why they don't deserve the death penalty, in spite of the crime they committed.

The shift from Justice O'Connor to Justice Samuel Alito may also result in a court that is far less worried about the fate of capital defendants. In a 2005 case about the effectiveness of capital counsel, then-Justice O'Connor voted with the court's more liberal members to find, 5-4, that the convicted man's lawyer had provided subpar representation at his trial. The author of the 3^rd Circuit decision that reversed was then-Judge Samuel Alito, who would have denied the defendant a new trial.

Also last term, Justice Antonin Scalia wrote a separate opinion in a death-penalty case for the sole purpose of excoriating Justice David Souter—who had written in a dissent in a technical case about the Kansas capital-sentencing scheme—and made mention of exonerated innocents. Justice Scalia's opinion was a full-bore attack on the whole notion of the innocent exonerees "paraded by various professors." He claimed, in effect, that even if those exonerated were not guilty enough to warrant the death penalty, they were still far from "innocent."

In his article, Chemerinsky notes that justices who change course on the death penalty often do so only after many decades on the bench. Justice Harry Blackmun famously decided that he could no longer impose the death penalty only at the end of a long career. That might suggest that the two new justices, Roberts and Alito, may only soften on capital punishment in the distant future. First, perhaps, they must oversee decades of fruitless appeals over inept lawyers and tainted evidence.

Or, like Scalia and Clarence Thomas, they may never change their minds, simply insisting that if the death penalty in this country needs fixing, the legislatures should to do it—and, in fact, that process is already beginning to happen. But as state legislatures grapple with capital punishment, and more Americans admit to their doubts, some members of the court seem paradoxically more certain than ever that the system works perfectly well. They may do that by clinging to the conviction, as does Scalia, that no one innocent has ever been executed, by clinging to Byzantine rules that preclude judicial review, or by holding fast to the notion that death-penalty cases are no different than other cases. That requires blocking out a good deal of reality—a reality the rest of us find increasingly hard to ignore.

A version of this article also appears in the Outlook section of the Sunday Washington Post.