I don't normally respond to legal analysis in @BreitbartNews, but this piece claiming that Ray Kethledge inserts his own views of morality into the law instead of following the law is just bizarre. I thought I would say why. breitbart.com/big-government…
2/ The main evidence in the article is a death penalty case, US v. Gabrion, in which Kethledge wrote the opinion for the conservative wing of the en banc 6th Circuit upholding a death sentence. Here's the opinion, and read the 1st paragraph, below. opn.ca6.uscourts.gov/opinions.pdf/1… 
3/ The Breitbart article claims that Kethledge based his decision on "moral considerations over constitutional originalism." How so? Gabrion's lawyers argued that he couldn't be sentenced to death for his brutal crime because the state where he committed his federal crime
4/ didn't have its won death penalty. The defense wanted to argue to the jury that he shouldn't be given the death penalty for his federal crime because the state didn't have a death penalty (pretty much asking for jury nullification). Trial judge said no, you can't.
5/ Kethledge, writing for the conservatives on the 6th Circuit, said that was right: Whether the state has independently enacted a death penalty for state crimes is irrelevant -- it's not what SCOTUS calls "constitutionally relevant mitigating evidence" that the jury has to hear.
6/ Why is that? Because SCOTUS has required that the death penalty must be based on a defendant's "personal responsibility and moral guilt.” Enmund v. Florida, 458 U.S. 782, 801 (1982). Whether the state govt had enacted a state death penalty was completely irrelevant to that.
7/ The moral outrage of raping and drowning alive a young mother & murdering her infant daughter wasn't less bad because of state law, so the defendant can't have his conviction overturned on that basis under existing Supreme Court precedent.
8/ The lefties on the 6th Circuit, led by the 6th Circuit's version of Reinhardt, Karen Nelson Moore, disagreed with Kethledge & the conservatives . My sense is that Moore usually votes to overturn death sentences, so no surprise. It's Moore's dissent that Breitbart credits.
9/ Judge Moore had a curious theory that the jury should be able to hear about state law because it might work -- it might "soften" jurors and make them rethink the death penalty. Here's her view:
10/ Judge Moore accused Kethledge of inserting morality into the case b/c she thought death penalty deliberations should be more of a free for all, where juries get to ponder other jurisdiction's law, the nature of fed jurisdiction, etc., not just the wrongfulness of the act.
11/ But even if you think that's a hard question (I don't think it is), it's not inserting morality into the law: It's just limiting a jury from hearing about legal disputes unrelated to the defendant and his acts. Breitbart's taking Moore at face value is very odd here.
12/ Breitbart also faults Kethledge for not applying an originalist approach to the death penalty. But I don't know how you apply an originalist approach to determine what is relevant evidence in a death penalty sentencing phase: There was no such hearing in the 18th Century.
13/ The Supreme Court created and required these hearings starting in the 70s, and it has tons of cases on what they are required to look like. For a lower court judge to ignore all those binding cases would be lawless. Certainly no basis on which to criticize Kethledge. /end
