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Investigators examine the scene of the second bombing outside the Forum Restaurant on Boylston Street near the finish line of the 2013 Boston Marathon.

Elise Amendola/The Associated Press

U.S. Supreme Court justices on Wednesday leaned toward reinstating convicted Boston Marathon bomber Dzhokhar Tsarnaev’s death sentence for his role in the 2013 attack that killed three people and wounded more than 260 others.

The nine-member court’s conservative majority appeared sympathetic toward the Justice Department’s effort to overturn a lower court ruling that tossed out the sentence. The three liberal justices asked tough questions of the government but it seemed unlikely that the conservatives shared their concerns.

Despite President Joe Biden’s stated goal to eliminate capital punishment at the federal level, his administration opted to carry out an appeal – initially launched by the Justice Department under his predecessor Donald Trump – of the lower court ruling overturning Tsarnaev’s death sentence.

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No federal inmates had been executed for 17 years before Trump oversaw 13 executions in the last six months of his term.

During the argument, Tsarnaev’s lawyer Ginger Anders focused her argument on whether U.S. District Judge George O’Toole, who presided over the trial, improperly excluded evidence relating to a 2011 triple murder in Waltham, Massachusetts linked to Tsarnaev’s older brother. Lawyers for Tsarnaev, who is 28 now and was 19 at the time of the attack, have argued that he played a secondary role in the bombing to his brother Tamerlan, who they describe as “an authority figure” with “violent Islamic extremist beliefs.”

The conservative justices appeared sympathetic to O’Toole’s decision to exclude the evidence in part because it had not been proven what exactly Tamerlan’s role in the murder had been. The primary source of the evidence, a man named Ibragim Todashev, was killed by an FBI agent when he attacked them during an interview.

Justice Samuel Alito said if evidence of the triple murder were admitted there effectively would have to be a trial within a trial to determine what happened. Alito called the evidence “inadmissible many times over in a regular trial.”

Justice Neil Gorsuch had similar concerns, wondering what would happen if it is “impossible to determine who led the Waltham murders.”

The liberal justices, led by Justice Elena Kagan, pushed back. Kagan said that Tsarnaev’s lawyers were desperate to introduce mitigating evidence showing he was in thrall to his brother.

O’Toole allowed some evidence about the relationship between the brothers, but stopped short of “evidence of a gruesome, murderous crime” that would illustrate the “extraordinary influence” of the older brother, Kagan added.

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There was little discussion of the other issue before the nine justices on whether the global media attention that the bombing garnered may have influenced jurors – a question that the lower court found that O’Toole did not sufficiently address during the jury selection process.

Victims of the bombing are divided over whether Tsarnaev should be executed.

The government is challenging a lower court’s 2020 decision ordering a new trial over the sentence Tsarnaev should receive for the death penalty-eligible crimes for which he was convicted. Whatever the Supreme Court decides in a ruling due by the end of June, Tsarnaev would at a minimum remain in prison for the rest of his life. He is incarcerated at the “Supermax” federal prison in Florence, Colorado.

The Tsarnaev brothers detonated two homemade pressure-cooker bombs at the marathon’s finish line on April 15, 2013, and days later killed a police officer. Tamerlan Tsarnaev died after a gunfight with police.

Jurors convicted Dzhokhar Tsarnaev on all 30 counts he faced and determined he deserved execution for a bomb he planted that killed Martin Richard, 8, and Chinese exchange student Lingzi Lu, 23. Restaurant manager Krystle Campbell, 29, was killed by the second bomb.

In overturning Tsarnaev’s death sentence but not his convictions, the Boston-based 1st U.S. Circuit Court of Appeals ruled that O’Toole “fell short” in screening jurors for potential bias following pervasive news coverage of the bombings.

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The Justice Department has argued that the 1st Circuit failed to defer to O’Toole’s broad authority as the trial judge to manage jury selection, as allowed under court precedents. The department also had argued that admitting evidence about Tamerlan Tsarnaev’s possible involvement in the prior triple murder would not have affected to the outcome.

Tsarnaev’s lawyers have said O’Toole’s decisions deprived him of his constitutional right to a fair trial and also violated the Federal Death Penalty Act, which outlines the procedure for imposing the death penalty under federal law.

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