The Supreme Court Justices who agreed to hear the case today to hear the case agreed that prosecutors should be allowed to ask jurors in a capital murder case about their views on capital punishment in some circumstances.

The Scalia/Thomas Justices — who are usually our last resort in legal emergencies — thought that prosecutors should be allowed to ask jury about their opinions about the death penalty at sentencing. The other Justices, Kennedy, Breyer, Alito, and Kagan wrote in dissent that these kinds of juror questions violate the Sixth Amendment’s protection of jurors’ confidential opinions about capital cases.

There are arguments to make about whether the Justices held in favor of allowing jurors to speak on capital cases because they want to get as many people convicted of capital crimes, but this appears to be a hard lesson about why jury trials have been permitted to run almost endlessly in courts across the country for decades: The Justices seem convinced that juries will always find guilt regardless of the depth of their concerns about the death penalty. They are also convinced that a person’s juror opinions should have no impact on his or her sentence.

Of course, such concerns would be less worrisome if they weren’t so obvious. The Warren court unanimously maintained that an American was never able to be put to death during “common practice” in America. Since then, 33 death penalty cases have been dropped because juries were unable to reach a unanimous decision or because they had a 5-4 decision. And the Court has entertained requests by prosecutors to have jurors asked to speak on capital cases more than 50 times. That doesn’t include several exceptions for new death penalty cases involving heinous crimes that the Court has granted under old rules.

Voters seem to agree that the system is broken because prisoners who do not give up their appeals continue to face death sentences decades after they have exhausted their appeals. Today’s decision will feed this concern in the most obvious way by letting prosecutors run a capital case by relying on the views of jurors about capital punishment that the voters have decided should never be imposed.

Even if they were right, however, such a position seems wrongheaded because juries would remain free to admit any kind of sympathy for a death penalty defendant, even if some of their jurors had signed a statement during the trial saying the death penalty does not deserve their support. To allow such bias to affect capital sentences would undermine the very values upon which our system of justice rests. It would rob jurors of one of their most basic rights and privileges. It would show that juries make decisions about the death penalty based on considerations other than their concern about the fairness of the punishment they are giving.

Meanwhile, the justices sound more and more like statesmen every year. Let’s hope this latest effort of the Justices to rescue a system that has lost its way doesn’t end up where the lead cases of the 2013 term have ended.

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