Liberal Justice Elena Kagan interrupted conservative Justice Brett Kavanaugh during his questioning of an attorney during a hearing before the Supreme Court on Wednesday, in an apparent violation of protocol.
The verbal exchange came as the high court heard oral arguments in a case involving Boston Marathon Dzhokhar Tsarnaev and whether a federal appeals court ruled properly in overturning his death sentence for the 2013 act of terrorism that left three people dead and several others wounded.
The exchange also amounted to a rare protocol breach during arguments in which the court’s larger constitutionalist faction appeared to side with the Justice Department’s challenge to the 2020 ruling by a lower court upholding Tsarnaev’s conviction while tossing out his death sentence.
The high court’s three left-leaning justices were asking the government’s lawyers tough questions, according to the Daily Mail, but they did not appear to sway at least five of the six conservative-minded colleagues in ordering a new trial to see if Tsarnaev’s death sentence should be reinstated or if he should just remain behind bars for life.
The exchange, which was initiated by Kagan, came as justices were examining how the appeals court may have disregarded possible mitigating evidence.
Kagan and liberal colleague Justice Sonia Sotomayor questioned Justice Department attorney Eric Feigin about why Tsarnaev’s defense wasn’t permitted to include evidence that his brother, Tamerlan — who was killed by police in the days after the bombing — may have had involvement in a triple homicide two years earlier.
They intimated that evidence would have lent support to Tsarnaev’s claims that he was overly influenced by his older brother’s domineering nature.
During her questioning, Kagan asked the government’s attorney to assume that the triple homicide evidence was solid and ponder how the appeals court might have considered that evidence under the circumstances.
“Your entire case rests on the notion that the evidence just wasn’t strong enough,” she said. “How is it the job of the district court to evaluate, much less decide that question?”
But when he began his questioning, Kavanaugh appeared to disagree with his liberal colleagues’ line of questioning, suggesting that the potentially mitigating evidence was not included because it was considered weak and thus did not make sense for the federal attorney to assume otherwise.
“The premise was assumed away…” Kavanaugh said as Kagan interrupted.
“The premise was assumed away because that was the role of the jury,” she said, in a rare public exchange.
The Justices often disagree but they generally avoid doing so during public testimony to avoid being seen as criticizing each other.
Of the conservative-leaning justices, the Daily Mail reported that Chief Justice John Roberts appeared to be the only one who could side with Tsarnaev, who is 28 now but was 19 at the time of the bombing. He noted during the hearing that it ought to be easier to admit evidence when the outcome could mean a death sentence.
In addition, the appeals court found that U.S. District Judge George O’Toole, “who presided over the original trial, also ‘fell short’ in screening jurors for potential bias following wall-to-wall news coverage of the bombings,” the Daily Mail noted.