Immediately after that exchange, Justice Scalia pondered whether the Kansas Supreme Court could win retention elections if they reversed death sentences on the basis of Kansas law, or whether a Kansan electorate that favors the death penalty, "unlike our Justice Breyer," would throw the Kansan justices out of office:
JUSTICE ALITO: Isn't it true, General Schmidt, that it makes a big difference whether this is done under the Federal Constitution or under Kansas law? And presumably the Kansas Supreme Court understood that it had the capability of basing its decision on Kansas law. But if it did that, it would have to take responsibility for the decisions in these cases, which involve some of the most horrendous murders that I have seen in my 10 years here. And we see practically every death penalty case that comes up anywhere in the country. These have to rank as among the worst. So it did not take responsibility for that. It said it is the Eighth Amendment, and we have to apply the Federal Constitution. Now, it may be they will say, well, we are going to say that Kansas law requires this but then it is their responsibility, isn't that true?
MR. SCHMIDT: Justice Alito, I, of course, won't speculate on what the Kansas court was -- might do.
JUSTICE ALITO: Well, I wasn't speculating on why they did what they did, but the consequences of basing it on the Federal Constitution - - one of the consequences of basing it on the Federal Constitution is that they do not have to take responsibility for it.
MR. SCHMIDT: I have no ability to dispute that hot topic.
JUSTICE SCALIA: Do -- do you have retention elections in Kansas?And here's Justice Sotomayor complaining about AEDPA and asymmetries between it and state-on-top direct review:
MR. SCHMIDT: We do, Your Honor.
JUSTICE SCALIA: Yes. And the fact -- how how many people are there on death row in Kansas?
MR. SCHMIDT: There are currently nine under sentence, with a tenth --
JUSTICE SCALIA: Which could suggest that --that Kansans, unlike our Justice Breyer, do not think the death penalty is unconstitutional and indeed very much favor it, which might suggest that a retention election that goes before such people would not come out favorably for those justices who create Kansas law that -- that would reverse these convictions. I am just speculating, of course.
JUSTICE SOTOMAYOR: What a wonderful system we've created. We give -- even when a State court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them. And when they are wrong on a legal conclusion applying our test, we jump in and reverse them, right?