New York Times

WASHINGTON — The Supreme Court on Wednesday heard two hours of arguments in its first capital cases since two justices announced in June that they had grave doubts about the constitutionality of the death penalty.

The issues were technical, concerning sentencing procedures, and the crimes were terrible, even by the standards of capital cases. By the end of the arguments, there was little reason to think that the cases would make a significant contribution to the court’s larger debate about whether the death penalty can be reconciled with the Eighth Amendment’s ban on cruel and unusual punishment.

Justice Antonin Scalia alluded to the June dissent, from Justices Stephen G. Breyer and Ruth Bader Ginsburg, during the discussion of Wednesday’s cases, which concerned three inmates on death row in Kansas.

“Kansans,” he said, “unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed, very much favor it.”

But Justice Sonia Sotomayor expressed doubts about whether the capital justice system was reliably separating the worst offenses from others.

“What a wonderful system we’ve created,” she said sarcastically. “Even when a state court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them.”

The exchanges had little of the bitter testiness of the arguments in April inGlossip v. Gross, the lethal injection case that gave rise to Justice Breyer’s dissent. The muted tone may have been related to the nature of the crimes committed by two of the inmates, the brothers Reginald and Jonathan Carr.

Their cases “involve some of the most horrendous murders that I have seen in my 10 years here,” Justice Samuel A. Alito Jr. said. “And we see practically every death penalty case that comes up anywhere in the country.”

Justice Scalia recited the details of the brothers’ crimes at length.

They broke into a Wichita home where five people were staying and forced their victims to strip naked and perform sex acts on each other. The brothers then raped the women in turn. Then they drove all five victims, still naked or partly clothed, to a snowy field where they shot them execution-style in the backs of their heads as they knelt.

One woman survived, spared when a bullet was deflected by her hair clip. “Oh, and they ran over her, too,” Justice Scalia said. “After shooting her in the head, the car ran over her.”

Naked and barefoot, the woman ran for more than a mile through snow and barbed wire to seek help. The brothers returned to the home in Wichita and killed her dog.

The justices considered two issues in three cases, Kansas v. Jonathan Carr, No. 14-449; Kansas v. Reginald Carr, No. 14-450; and Kansas v. Gleason, No. 14-452.

The first issue, concerning jury instructions, was pressed by the brothers and a third inmate, Sidney Gleason, who was convicted in a separate killing, a double murder.

Capital trials have two phases. After a conviction, juries weigh aggravating factors against mitigating ones to decide whether the death penalty or a lesser sentence is warranted. The inmates’ juries were told they had to find the aggravating factors beyond a reasonable doubt, but the jury instructions were silent about the standard of proof for the mitigating factors.

The inmates said their juries should have been told in so many words that the standard for beyond a reasonable doubt did not apply to the mitigating factors.

“A man is being put to death under jury instructions that are so confusing that there is a reasonable likelihood that some juries would interpret those instructions to bar consideration of the mitigating circumstances and others would not,” said Neal K. Katyal, a lawyer for Reginald Carr.

Derek L. Schmidt, the state’s attorney general, said there was no confusion. “The verdicts reflect the reasoned moral response of these jurors to the aggravated brutality of these crimes,” he said.

Justice Scalia said it was “common sense” that if only one kind of factor was said to require the tougher standard then the other did not. “Inclusio unius, exclusio alterius,” he said, a Latin maxim that means including one thing excludes the other.

Justice Sotomayor said that was slicing things too finely. “I doubt very much that any juror has heard of that maxim,” she said.

The brothers, who were tried together, also argued that their sentencing hearings should have been held separately, as mitigation evidence offered by one may have hurt the other. Jonathan, for instance, argued that he had acted under the corrupting influence of Reginald, who is his older brother.

Justice Elena Kagan did not seem persuaded. “The idea that somebody was a lousy big brother seems pretty small in the scale of things,” she said.