Despite O'Connor's retirement, the Court's new approach seems likely to impose significant constraints on capital punishment, but ones that will be largely invisible to the public. The Court will probably not be striking down many laws, but the justices will tighten the screws by scrutinizing individual cases enough to further isolate the death penalty regionally and to raise its political and financial costs. This is a matter less of politics than of simple human nature. The Court speaks in the language of principle, but only a few of the justices are so committed to the principle of deference to state-court judgments that they would feel comfortable over time seeing their names on opinions upholding manifest injustices. Since Roger Keith Coleman's execution, in 1992, Virginia law-enforcement authorities have successfully resisted calls for posthumous DNA testing that could resolve his claims of innocence. Coleman may or may not have been innocent; but someday we're going to learn for sure that someone put to death in this country was in fact not guilty. And it's a fair bet that no one would want her obituary to say she called the debate over that execution "a case about federalism."
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