The most telling part of the oral argument came during the first moments of Texas’s presentation. With the court short one justice and divided between four liberals and four conservatives, the two most likely swing voters on the conservative side are Justice Kennedy and Chief Justice Roberts. Both expressed immediate skepticism of Texas’s argument.

Scott Keller, Texas’s Solicitor General, began his argument as many advocates arguing for the death penalty often do, by emphasizing the heinousness of Mr. Buck’s crimes. Chief Justice Roberts quickly cut Mr. Keller off, questioning how this case was different from the previous cases in which Dr. Quijano testified and the state agreed to grant a sentencing rehearing. Mr. Keller claimed that Mr. Buck’s case was different because the defense rather than the prosecution offered the evidence at sentencing. Justice Kennedy immediately responded, pointing out that the prosecution also utilized Dr. Quijano’s testimony to bolster its position.

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