Openly concerned about its authority being curtailed by Congress, the Supreme Court held a rare late-term argument Monday over a new federal law limiting appeals by the nation's death row inmates.
Behind the 60-minute session's dry language was a potentially explosive election-year question: How far can Congress go in trying to speed up the pace of executing America's most heinous criminals?Several justices also focused their questions on the possibility that an innocent person might be condemned to die.
Justice Stephen G. Breyer asked whether the Anti-Terrorism and Effective Death Penalty Act, signed by President Clinton in April, would let the Supreme Court step into such cases. Georgia prosecutor Susan Boleyn said it would not.
"We want extraordinary relief to be even more extraordinary," she said, adding that Congress intended claims of innocence to be handled by state courts or by governors.
But Henry Monaghan, representing Georgia death row inmate Ellis Wayne Felker, argued that the historic function of death row appeals "is to prevent execution of an innocent person."
He said the new law was "not the work of Attila the Hun" but would be completely contrary to historical practice.
The justices usually complete their oral-argument calendar in April, but added Felker's case on a speeded-up schedule.
The court had not held an argument this late in its term since it quickly reviewed a federal flag-burning law in 1990. That law was struck down as a free-speech violation.
The justices are expected to decide Felker's case before the current term ends this month, but they have another option - scheduling a new round of arguments for next fall. The complexity of Monday's session appeared to make that option a distinct possibility.
Sen. Orrin Hatch, R-Utah, accused the Clinton administration of trying to undermine the arguments for the process.
"For a president who says he's tough on the death penalty and tough on crime, he sends a solicitor general up here who mealy-mouths the issue and tries to undermine the case," he said.
Hatch listened in person at the court and told reporters afterward that he felt that arguments made by lawyers for the Clinton administration would essentially allow unlimited appeals by criminals.
"Under the solicitor's arguments, I believe they would be able to come thousands of times" to the Supreme Court, Hatch said.
"It undermines the whole statute," he said, adding he believes that extra appeals after a criminal reached his newly allotted total should be allowed only if new evidence emerges or if needed to handle Supreme Court decisions that are retroactive.
"It's amazing to me that the president talks out of one side of his mouth about being tough on crime, and then his solicitor general comes up here and talks out of the other side to make it easy for criminals . . . to have frivolous appeal after frivolous appeal," Hatch said.
The high court has appeared as frustrated as Congress in recent years with the pace of executions and began chipping away in the early 1980s at what it believed to be prisoners' abuse of appeals, called petitions for writs of habeas corpus.
Deseret News Washington correspondent Lee Davidson contributed to this report.