Kansas is a conservative state, but because it selects its state supreme court justices in the worst possible way, it has a court that bends over backwards to help murderers escape justice. It often invokes the federal constitution to do so in order to prevent its decisions from being abrogated by the legislature. Those clearly erroneous decisions can be reversed by the United States Supreme Court, however, and today's decision is not the first.
And when the Kansas Supreme Court time and again invalidates death sentences because it says the Federal Constitution requires it, "review by this Court, far from undermining state autonomy, is the only possible way to vindicate it." Ibid. "When we correct a state court's federal errors, we return power to the State, and to its people." Ibid.Justice Scalia wrote the opinion from the Court, and he quoted his own powerful concurring opinion in Kansas v. Marsh (2006), elevating that language from concurrence to controlling precedent. Bravo.
In the capital sentencing regime that has been built since the 1976 cases, the process consists of two distinct steps -- eligibility and selection. Blurring that distinction is an error, because the two decisions are quite different. The jury instruction issue in this case illustrates the importance of keeping that distinction clear.