In 2008, the Supreme Court reviewed, although on an emergency basis, another ruling in which Kethledge had participated. Kethledge had joined a majority of the full 6th Circuit in upholding a district court’s ruling in favor of the Ohio Republican Party in a case involving the Help America Vote Act that liberal groups warned could have resulted in “last-minute disenfranchisement” for “thousands of eligible new Ohio voters.” The party had argued that the act requires states to successfully match voters with computer records in the state’s driver’s license database or the Social Security database before they could register to vote or have their votes counted. The district court granted the party’s motion to require Ohio’s secretary of state to give county election boards either lists of mismatches or a way to identify the mismatches, and the full 6th Circuit upheld that ruling. The secretary of state asked the Supreme Court to step in; in an unsigned order, the justices vacated the district court’s temporary order. The justices did not weigh in on the merits of the dispute, but instead concluded that the party had not shown that it was “sufficiently likely to prevail” on the question whether the district court has the authority to enforce the law in a case filed by a private party.
During his time on the bench, Kethledge has been a solidly conservative vote. He has almost uniformly voted in favor of the state and against the inmate in death-penalty cases. In United States v. Gabrion, Kethledge wrote for the divided en banc court in affirming a federal death sentence. Perhaps in response to the gruesomeness of the murders at issue in the case, Kethledge’s opinion uses strong terms. For example, several of the inmate’s arguments centered on the fact that he was tried in federal, rather than state, court because one of the murders took place in a national forest in Michigan – which does not have the death penalty. Kethledge rejected the inmate’s argument that the absence of the death penalty in Michigan should have been a mitigating factor considered by the jury in determining his sentence, because he would not have otherwise been subject to the death penalty. Kethledge pointed to the Supreme Court’s caselaw indicating that mitigating circumstances can play a role in a defendant’s personal culpability. “That Michigan lacks a death penalty is irrelevant to a reasoned moral response to Gabrion’s background, character, and crime.”
Kethledge was similarly dismissive off the inmate’s argument that he should be allowed to argue at his sentencing that there was some “residual doubt” about whether the victim was actually killed in the national forest. Kethledge wrote that “the exclusion of Gabrion’s residual-doubt argument was so palpably harmless as to render an opinion on the merits of the exclusion nearly advisory.” Indeed, he continued, although “most residual-doubt cases” hinge on whether the inmate “actually committed the murder, here the supposed doubt concerns only a technical jurisdictional issue that, though significant legally, is much less so morally.”
Kethledge’s conclusion also referred to the jury’s ruling in moral, rather than legal, terms. He observed that, “[a]fter 11 days of testimony and two days of careful deliberation, the 12 jurors who sat on this case decided unanimously that Marvin Gabrion deserved a sentence of death for what he did to” the victim. “We have no basis,” Kethledge stressed, “to set aside that moral judgment.”
= new reply since forum marked as read
