Mr. Jay argued that interpreting the law to include state clemency proceedings would open a floodgate and that lawyers paid by the federal government would end up handling other later state proceedings like stay applications and retrials.
If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.
"It seems to me that it would be more likely that Congress wanted this counsel to continue on in state proceedings" like trials, Chief Justice Roberts said.
"A federal legislature would be loath to impose a procedural limit on state proceedings," Mr. Boutrous said, "and I am not even sure that they could".
And precedent suggests that federal prosecutors will wait for the outcome of the state proceedings before deciding whether to pursue civil rights charges.
Calling the lower court's decision "imprudent" and "unnecessary," he said that "the policy against federal interference in state litigation is especially strong when the state proceedings are criminal in nature".
All federal clemency proceedings take place within the executive branch, she said, and so the words "or other" must have referred to state proceedings in which other parts of the government play a role in granting clemency.
Justice Stevens, writing for himself and Justices Breyer, Ginsburg, Kennedy and Souter, said the reference to "other clemency" must refer to state proceedings because only executive clemency exists in the federal system.
But because the course of state proceedings has been interrupted, time is short, and the issue is before us, I think it sensible for the court to address it.
It is an issue that might well have been dealt with adequately by the Florida courts if the state proceedings had not been interrupted, and if not disposed of at the state level it could have been considered by the Congress in any electoral vote dispute.
