The little SCOTUS capital case that could...?

As detailed in this AP piece, this local story and this SCOTUSblog preview, this morning the US Supreme Court will hear oral argument in Bobby v. Bies, one of the very few capital cases on the SCOTUS docket this term.  There are so many notable aspects of this little case as it comes up from argument, I am not sure where to start my commentary.

Perhaps it is the broader SCOTUS death penalty context of Bobby v. Bies that first draws my attention.  After a series of terms with numerous consequential and controversial capital cases (e.g., Baze and Kennedy and Medellin last Term), this SCOTUS Term has only two argued cases involving capital defendants.  And, notably, neither of these capital cases emerged from the deep south or west as is typical.  Bies comes out of Ohio, and involves an intricate set of procedural issues formally concerning the Double Jeopardy Clause. 

Indeed, because the Double Jeopardy issue is so narrow in Bies, it appears that a few Justices decided simply that an error-correction cert grant was needed because the Sixth Circuit arguably over-extended precedents to take the death penalty off the table the defendant.  It is telling and somewhat remarkable that, especially in a Term with so few capital cases, not a single amicus brief was filed in Bies for either side.  (I'd love to hear from serious SCOTUS followers about the last capital case without any merits amici.)

But while Bies looks like a tiny case, there are some really big issues lurking.  Bies is the first case to provide the Justices an opportunity to consider again its consequential 2002 Atkins ruling that the Eighth Amendment prohibits the execution of mentally retarded defendants.  And because Ohio puts the burden on a defendant to prove up his mental retardation, there also also some Apprendi and/or due process issues to be found deep inside this case.  And, of course, like all state capital cases in the federal courts, there are the usual confusing and confounding AEDPA issues.

Ultimately, I think it is likely that Ohio gets a narrow victory in Bies (and I also think it is likely that Bies will live a long time on death row even if Ohio prevails in this case).  But, as cases like Baze and Marsh reminds us, the death penalty context often leads some Justices to go beyond the precise issues they must confront in a particular case.  If that happens in Bies, this little capital case from Ohio could possibly become a much bigger deal than it now seems.