Katyal’s efforts, although valiant, seemed to fall mostly on deaf ears, as epitomized by Justice Elena Kagan’s take on the question before the Court. She agreed with the inmates that the instruction was “unfortunate” — adding that she could understand why Kansas had later changed the instruction to make it clearer — but she focused more on the big picture. She observed that the instructions given to the jurors not only also allowed them to consider mercy for the defendants but also contained a “catch-all” instruction that allowed them to consider any other information that might tilt the balance in favor of the defendant and away from the death penalty. Moreover, during their closing arguments prosecutors specifically discussed the role of jurors in considering all of the evidence that had been presented to them. Given all of that, she suggested, doesn’t it seem likely that the jurors would not have actually been confused?

Justice Ruth Bader Ginsburg, whose vote the inmates would almost certainly need to prevail, also seemed dubious about the likelihood of confusion. The instructions, she noted, drew other distinctions between mitigating circumstances and the aggravating factors that the jury would need to find beyond a reasonable doubt to consider a death sentence: the jurors would need to agree unanimously on aggravating factors, while no such unanimity was required for mitigating factors. And that, she implied, would also reduce any risk that jurors would reflexively assume that they needed to apply the same burden of proof to mitigators and aggravators.

Justice Samuel Alito, one of the most pro-prosecution Justices on the Court, didn’t seem to see any problem with the instructions as they were given to the juries. If he were on a jury, he told Katyal, and was told that mitigating circumstances do not need to be demonstrated beyond a reasonable doubt, then he would wonder what the standard actually was. This, he suggested, may be “a situation where less is more.”

(http://www.autoadmit.com/thread.php?thread_id=3011742&forum_id=2#28925423)