Bob Dylan’s allusive lyrics in “Jokerman” include the line “False-hearted judges dying in the webs they spin.” The line may well apply (or may apply well) to the judges who bought the arguments why the jury’s death penalty verdict in the case of Dzhokar Tsarnaev should be overturned. Justice Thomas and five colleagues held otherwise on Friday in United States v. Tsarnaev (opinion embedded below).

Adding to the absurdity of the case is the Biden administration’s prosecution of the appeal from the First Circuit decision. The Free Beacon’s Kevin Daley reminds us in his story on the Supreme Court decision: “The Biden administration imposed a moratorium on federal executions in 2021, so Tsarnaev will not be put to death in the near term. But Friday’s result means a future administration could oversee his execution.” That’s one good reason to hope for the future. It can’t get here fast enough.

Justice Breyer wrote the dissenting opinion. As always, he found merit in the harebrained argument served up in the case before him to arrive at the desired result. (In this case, he doesn’t get around to deciding the second of the arguments, but he seems to find merit in it as well.) In any event, the arguments constitute what seem to me an obvious pretext for a result that is desired as a result of ideological opposition to capital punishment. See Part II-C. at page 15 of his dissent.

In this respect, the Biden Justice Department, which prosecuted the appeal in the teeth of its convictions to the contrary, may have it over Justices Breyer and his dissenting colleagues (Justice Sotomayor did not join in Part II-C). The administration’s prosecution of the appeal is nevertheless somewhat mysterious. According to Berkeley Law School Dean Erwin Chemerinsky, the appeal demonstrates the administration’s hypocrisy. If so, it provides a study in the tribute that vice pays to virtue.

United States v. Tsarnaev by Katie Caviness

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