dissenting.
I agree with the court that justice demands an end to this twenty-year litigation, but not through a result that is clearly wrong. I respectfully suggest that the outcome of this appeal should be governed *784by a faithful application of law, nothing else.
The court hangs its hat on the premise that Moore v. Clarke, 904 F.2d 1226 (8th Cir.1990) (Moore I), mandates today’s decision, stating “[w]e are bound by our opinion in [Moore I ]; only en banc panels have the authority to alter prior decisions.” Ante at 782. This language, through omission, misstates the law. The court in Moore I (with Judge Floyd Gibson dissenting) found that Moore was sentenced in 1980 in violation of the Eighth Amendment because the “exceptional depravity” aggra-vator applied by the Nebraska trial court was unconstitutionally vague. 904 F.2d at 1233. However, even accepting the dubious notion that Moore 1 reflected valid precedent at any point in 1990, subsequent Supreme Court precedent is incompatible with its holdings, and we are thus no longer bound. Young v. Hayes, 218 F.3d 850, 853 (8th Cir.2000) (panel no longer bound by prior panel opinion when intervening Supreme Court case is inconsistent with previous opinions).
Moore was first sentenced after trial in 1980 by a three-judge sentencing panel as provided by Nebraska law.2 Neb.Rev. Stat. § 29-2520. The panel, relying upon a previous Nebraska Supreme Court narrowing of prong two of Nebraska Revised Statute § 29-2523(l)(d) found that Moore’s murders were the product of “exceptional depravity by ordinary standards of morality and intelligence.” Nebraska had earlier, in conjunction with the exceptional depravity prong used a “coldly calculated” formulation in two cases issued on the same day in VMl-State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (Neb.1977) and State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (Neb.1977).3 The Moore sentencing panel applied this precedent.
The Nebraska Supreme Court did not indicate the source of its “coldly calculated” formulation but the Florida death penalty statute, enacted in response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), contained a separate “cold, calculated” aggravator beginning in 1979. See Jonathan Kennedy, Florida’s “Cold, Calculated and Premeditated” Aggravating Circumstance in Death Penalty Cases, 17 Stetson L.Rev. 47, 52, 60-61 (1987). Florida still uses this statutory rule, without published disagreement from the Supreme Court, and the Florida Supreme Court has held this ag-gravator is constitutional. Fennie v. State, 648 So.2d 95, 98 (Fla.1994), cert. denied, 513 U.S. 1159, 115 S.Ct. 1120, 130 L.Ed.2d 1083 (1995).4
*785As this dissent will discuss, infra, the 1980 sentencing panel was on firm constitutional ground when it found “exceptional depravity” because “each of the murders was ... so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life,” and that “[t]he defendant’s own statements ... while in custody ... indicate[d] that these crimes had been in the planning stage for at least a day or two before the [first] homicide.” State v. Moore, Order of Sentence at 84-85 (Dist. Ct. Douglas County, June 20, 1980). The sentencing panel also noted Moore’s selection of his victims on the basis of their age, observing that Moore had explained in his confession that when his potential victims drove up, he hid in the vicinity of the address and checked the cab to see whether the driver was “not too young” because it was easier for him to shoot an older man rather than a younger man nearer his own age. Id. at 85. The Nebraska Supreme Court affirmed the death sentence imposed by the 1980 panel saying:
We agree that the following circumstances exhibit a state of mind exceptionally depraved and totally and senselessly bereft of regard for human life: (1) The murders here were coldly planned as a part of the robberies. (2) The evidence clearly supports the conclusion that the murders were to be repetitive, i.e., the defendant intended to continue on his selected course of conduct so long as his needs required. (3) The victims were selected on the basis of certain characteristics which made it easier for the defendant to shoot them, namely, their ages. His unstated conclusion was that a human life in the middle years is less valuable than a younger life.
State v. Moore, 210 Neb. 457, 316 N.W.2d 33, 41 (Neb.1982). This affirming language followed the sentencing panel formulation almost in its entirety.
Then, in 1986 the Nebraska Supreme Court decided State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (Neb.1986). The Nebraska Supreme Court adopted the Arizona Supreme Court’s five-factor test (developed in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, 11-12, (Ariz.1983), cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983)), to narrow the “exceptional depravity” aggravator. The court said:
[F]or the purpose of § 29 — 2523(l)(d) as an aggravating circumstance in determining whether the death penalty may be imposed, we hold that “exceptional depravity” in a murder exists when it is shown, beyond a reasonable doubt, that the following circumstances, either separately or collectively, exist in reference to a first degree murder: (1) apparent relishing of the murder by the killer; (2) infliction of gratuitous violence on the victim; (3) needless mutilation of the victim; (4) senselessness of the crime; or (5) helplessness of the victim.
399 N.W.2d at 731-32.
Of course, the Palmer “senselessness of the crime” articulation when coupled with the circumstance of a “coldly planned” murder based upon factors of “age” as *786outlined by both the 1980 sentencing panel and the Nebraska Supreme Court in its 1982 affirmance of the panel, clearly and sufficiently channels the sentencer’s discretion within constitutional limits. Gret-zler, 659 P.2d at 12 (senselessness or helplessness combined with other narrowing circumstances separate the crime from the norm of those considered to be noncapital offenses).
This brings us to the specifics of this court’s 1990 Moore I decision, reached, as earlier indicated, over the vigorous dissent of Judge Floyd Gibson, wherein this court found that Moore was sentenced under an unconstitutionally vague exceptional depravity factor. 904 F.2d at 1233. With regard to the Palmer case, decided six years after Moore was sentenced, the panel stated:
Assuming arguendo that Palmer had been available to guide the panel sentencing Moore, we still are not convinced that the Palmer decision, when considered with the earlier cited cases, fulfills the constitutional obligation of the Nebraska Supreme Court.... Our examination of the state court precedent available to guide sentencing bodies in Nebraska ... leads us to conclude, as did the district court, that, as earnestly as the Nebraska Supreme Court has attempted to provide objective criteria, the unconstitutional vagueness of the critical language in this statute remains.
Id. at 1231-32.
One month after Moore I was issued, the United States Supreme Court upheld the validity and constitutionality of the State of Arizona’s narrowing scheme in Walton v. Arizona, 497 U.S. 639, 654-55, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (stating that the construction given to the challenged factors was “virtually identical” to the construction given by the Oklahoma Supreme Court which was approved in Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)), and in Lewis v. Jeffers, 497 U.S. 764, 777-78, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (Arizona Supreme Court construed the “especially heinous, cruel or depraved” aggravating factor in a constitutionally permissible manner).
Since the Nebraska Supreme Court in Palmer adopted its test directly from the validated Arizona formulation, the state immediately asked the Moore I panel to rehear and reconsider the case in light of Walton and Lewis. In deciding the motion for rehearing, the court, as required by necessary deference to Supreme Court precedent, substantively backed off its earlier condemnation of the Palmer approach, although this retreat is not mentioned in today’s opinion. However, the rehearing court (again over Judge Gibson’s dissent) still did not find in favor of the state. Moore v. Clarke, 951 F.2d 895, 897-98 (8th Cir.1991) (Moore II).
The court’s Moore II rehearing opinion acknowledged that the Supreme Court “sustained application of’ the Arizona test in both Walton and Jeffers. Id. at 897. However, the court held that Palmer’s narrowing effort was still unavailing to the state. Minutely parsing the language of various opinions, the Moore II court erroneously concluded that the “so coldly, calculated” as to indicate a state of mind totally and senselessly bereft of all regard for human life circumstance was not employed in Palmer. Id. This conclusion ignores the fact that the fourth Palmer factor channels the sentencer toward consideration of the “senselessness of the crime.” 399 N.W.2d at 732. The Moore II court further stated that Jeffers validated only “a portion” of the Gretzler test used in Palmer and implied that this portion did not include the “senselessness” prong of the Gretzler test. 951 F.2d at *787897. However, this position is specifically refuted in Jeffers wherein the Supreme Court states:
We granted certiorari in Walton to decide “[w]hether Arizona’s ‘especially heinous, cruel or depraved’ aggravating circumstance, as interpreted by the Arizona courts, fails to channel the sentencer’s discretion as required by the Eighth Amendment” ... and our judgment in that case plainly rested on a negative answer to that question.
Jeffers, 497 U.S. at 778, 110 S.Ct. 8092 (quoting Walton, 497 U.S. at 652-56, 110 S.Ct. 3047) (emphasis added).
Moore II also stated, “[t]he standard applied to Moore in 1980 was modified substantially six years later by Palmer, and the changes found desirable by the Nebraska Supreme Court in Palmer then demonstrate that the standards applied to Moore [in 1980] were vague.” 951 F.2d at 897. This simply misreads and misapplies Palmer and other applicable Nebraska precedent. If anything, the Palmer formulation approved by the Supreme Court in Jeffers and Walton, actually broadened the “senselessness” factor.5
So, contrary to the court’s pronouncements today, ante at 778, the Nebraska Supreme Court’s rulings in Rust, Moore (1982) and Palmer are fully reconcilable; indeed together, they inexorably point toward a constitutional use of the “exceptional depravity” aggravator by the Moore sentencing panel in 1980 and, more certainly, by the resentencing panel established in 1995.
I concede, as I must, that Gretzler notes that “[t]he mere existence of senselessness or helplessness of the victim, in isolation, need not always lead to a holding that the crime is heinous or depraved.” 659 P.2d at 11-12. But, where circumstances separate the crime from the “norm” of first-degree murder (as in Rust, Holtan, Gret-zler, Palmer and this case), the sentencer is entitled to find that the crime was committed in a “depraved manner.” Id. at 12. Nonetheless, the court today, as did the court in Moore II, ignores the Palmer narrowing and ignores the fact that the “coldly, calculated” circumstance, adopted by the Nebraska Supreme Court as early as 1977, is but a further, and fully constitutional narrowing (indeed, a judicially acceptable subset) of the “senselessness of the crime” factor.
Thus, given the convoluted course of this case in the Eighth Circuit, it is not surprising that after the remand from this court, the Nebraska Supreme Court, which can read and interpret the Constitution as well as this court, expressed understandable frustration and uncertainty as to what, if anything, might possibly pass constitutional muster in this circuit. While in this frame of mind, the Nebraska Supreme Court further remanded the case to a newly constituted trial-level resentencing panel. 243 Neb. 679, 502 N.W.2d 227, 228 (Neb.1993).
The court today interprets these statements and acts as a concession by the Nebraska Supreme Court that state law continued to be unconstitutionally vague and that a perception of inability to adequately narrow the aggravator existed. These are unsupported inferences.
It is true that the Nebraska Supreme Court, in remanding Moore’s case for re-*788sentencing, said, “we acknowledge that if this court reweighed the aggravating and mitigating factors and resentenced Moore, the federal court would likely reverse.” Id. at 230. However, this statement was not made because the Nebraska court, as argued by the court today, believed that its construction of section 29-2523(l)(d) was vague and unconstitutional.6 Instead, the Nebraska court noted that the Eighth Circuit, in habeas corpus review of Rust, see Rust v. Hopkins, 984 F.2d 1486 (8th Cir.1993), had opined that Nebraska appellate courts should not reweigh and resen-tence a capital defendant. Moore, 502 N.W.2d at 229.7 It was this issue that prompted the Nebraska Supreme Court to remand to a newly formed resentencing panel, not concern for the vagueness of the exceptional depravity aggravator.
Also expressing concern about the federal-court-imposed confusion over “exceptional depravity” in this circuit, the re-sentencing panel (apparently out of an abundance of caution) decided to narrow the “senselessness of the crime” factor by reiterating the “coldly calculated” circumstance which had been earlier articulated by the Nebraska Supreme Court in Rust, 250 N.W.2d at 874, Holtan, 250 N.W.2d at 880, Moore, 316 N.W.2d at 41, and State v. Harper, 208 Neb. 568, 304 N.W.2d 663, 668 (Neb.1981). The resentencing panel then adopted its own more narrow version of this “senselessness” ag-gravator by discussing more extensively the “experimentation” and “purposeful selection” elements of the aggravator:
The killer’s cold, calculated planning of the victim’s death as exemplified by experimentation with the method of causing the victim’s death or by the purposeful selection of a particular victim on the basis of specific characteristics such as race, gender, creed, sexual orientation, disability or age.
This formulation more than adequately and constitutionally narrowed the “coldly calculated” circumstance. Indeed, a similar, and arguably more vague formulation of the “coldly calculated” factor has previously been approved by this court.
In State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (Neb.1986), the Nebraska Supreme Court found that the murders in that case manifested exceptional depravity, in part because the murders “were coldly planned as part of a repetitive program of self-gratification, involving immature victims selected on the basis of their availability.” Id. at 251 (emphasis added). On habeas review, this court held that the narrowed definition applied by the Nebraska Supreme Court in Joubert was “clearly constitutional.” Joubert v. Hopkins, 75 F.3d 1232, 1244 (8th Cir.1996). The narrowed definition of the coldly calculated factor utilized in Joubert is quite similar to that used here-the Joubert defendant selected victims because of them immaturity and availability and the murders were repetitive. 399 N.W.2d at 251. Moore selected his victims on the basis of their advanced ages and the murders were repetitive.
Furthermore, the key inquiry concerning whether the “coldly calculated” formu*789lation provides a constitutional narrowing of “senselessness” is not the specific substance of that narrowed definition, but simply whether the sentencing process is not infected with bias or caprice. Jones v. United States, 527 U.S. 373, 400, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). This is the “controlling objective when we examine eligibility and selection factors for vagueness.” Tuilaepa v. California, 512 U.S. 967, 973, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). This vagueness review is deferential, however, and “[a]s long as an aggravating factor has a core meaning that criminal juries should be capable of understanding, it will pass constitutional muster.” Jones, 527 U.S. at 400, 119 S.Ct. 2090. Under this deferential standard, and in light of the similarity between the narrowed version of “coldly calculated” used at all stages of this case and in Joubert, the 1980 and 1995 sentencing panels adequately and constitutionally narrowed the “exceptional depravity” aggra-vator.
Perhaps the most unsupported pronouncement by the court today arises from its ruling on trial court authority to construe and apply a state sentencing statute. Saddled with the established validity of the Palmer factors, the court boldly states that the resentencing panel erred because it did not have the authority to further narrow the statute, that such action must only be undertaken at the appellate level. The court reaches back to Moore I to support this argument. Moore I stated, “a state supreme court may salvage a facially-vague statute by construing it to provide the sentencing body with objective criteria for applying the statute.” 904 F.2d at 1229, ante at 783. This slender reed, quoted out of context, in no way supports the court’s broad premise.
While it is certainly true that a state supreme court may construe a facially-vague statute in such a way as to render it constitutional, so may a state trial court. See, e.g., State v. Garza, 242 Neb. 573, 496 N.W.2d 448, 452 (Neb.1993) (trial court must be allowed first attempt at constitutional interpretation to determine validity of statute). Cf. Beck v. Piatt, 24 Cal.App.3d 611, 101 Cal.Rptr. 236, 239 (Cal.Ct.App.1972) (interpretation and applicability of statute is a question of law to be determined by trial court in “initial instance”); Dep’t of Public Utils, v. Freedom of Info. Comm’n, 55 Conn.App. 527, 739 A.2d 328, 331 (Conn.App.Ct.1999) (determination of meaning of statute is question of law within province of trial court and appellate court). Indeed, Moore II recognized this trial court authority when in support of its vagueness conclusions it stated “[n]o such narrowing construction was given the [statutory] ‘depravity’ language, either by the sentencing court or the Nebraska Supreme Court.” 951 F.2d at 897 (emphasis added).
The Nebraska Supreme Court, as early as Rust, specifically acknowledged a sentencing panel’s authority to narrow a statutory aggravator when the court noted: “[w]e think the panel properly interpreted and applied the [29 — 2523(1) (d) j definition in this case.” 250 N.W.2d at 874 (citing Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)). This circuit has recently observed that “[i]t is of course for the [state supreme court] to interpret and apply its own rules, and we have no power to redetermine questions of state law, including state procedural rules, as such.” Carter v. Bowersox, 265 F.3d 705, 716 (8th Cir.2001). Both before and after resentencing, the Nebraska Supreme Court has specifically recognized this lower court authority to interpret and apply legislatively enacted rules. State v. Moore, 502 N.W.2d at 229-30; 553 N.W.2d 120, 132-33 (Neb.1996) (resentencing panel *790within its authority to define the exceptional depravity component).
Even assuming, in the face of this straightforward determination of Nebraska law, that the resentencing panel somehow did not have the authority to narrow the statute in the first instance, the Nebraska Supreme Court’s subsequent ratification of the panel’s formulation cures any possible defect. In Moore’s direct appeal from the panel’s resentence, the Nebraska Supreme Court held that the resentencing panel’s definition of the coldly calculated factor was not vague, because it “provide[d] sufficient guidance to the sentencing authority ‘so as to minimize the risk of wholly arbitrary and capricious action.’ ” State v. Moore, 553 N.W.2d at 132 (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). The Nebraska Supreme Court also found that the panel’s formulation was not unconstitutionally overbroad since it required well more than the premeditation necessary to support a first-degree murder conviction. 553 N.W.2d at 133.
As earlier indicated, even the Moore I court recognized that “a state supreme court may salvage a facially-vague statute by construing it to provide the sentencing body with objective criteria for applying the statute.” 904 F.2d at 1229. Requiring the Nebraska Supreme Court to now remand the case, with instructions to the sentencing panel to apply the narrowed and approved definition that it has already applied, seems unnecessarily and improperly circuitous.
Because both sentencing panels constitutionally narrowed the “exceptional depravity” statute, and the Nebraska Supreme Court ratified the narrowed formulations on direct appeal, I would affirm the well-reasoned judgment of the district court denying habeas corpus relief. Otherwise, the message emanating from the court today is that whatever the State of Nebraska chooses to do in this case, this court will find it wanting. With this communication I vigorously disagree. Accordingly, I dissent.
. In this case, there have been two Nebraska trial court sentencing panels, one in 1980 and one in 1995. In this opinion, I generally refer to the 1980 panel as the “sentencing panel” and the 1995 panel as the "resentencing panel.”
. In Holtan, the court stated that because the defendant killed and attempted to kill unresisting victims of robbery, the "act was totally and senselessly bereft of any regard for human life.” 250 N.W.2d at 880. Although the court did not use the terms "cold” and "calculated” in Holtan, in Rust, the court stated, "[tjoday in Holtan, we have also said that aggravating circumstance (d) exists where the murder is so coldly calculated as to indicate a state of mind totally and senselessly bereft of regard for human life.” 250 N.W.2d at 874.
.Numerous other states use a statutorily enacted or common law "cold, calculated” circumstance in death penalty litigation. I can find no instance in which the Supreme Court has found use of this circumstance unconstitutional because of vagueness. See, e.g., Fla. Stat. Ann. § 921.141(5)0) (West 2001) (Florida statutory aggravator); 720 Ill. Comp. Stat. 5/9 — 1 (b)(l 1) (2001) (Illinois statutory aggravator); Angleton v. State, 714 N.E.2d 156, 160 (Ind.1999) (court held that finding of "coldblooded and calculated” aggravator did not merely reprise knowing and intentional element of first-degree murder), cert. denied, 529 *785U.S. 1132, 120 S.Ct. 2012, 146 L.Ed.2d 961 (2000); State v. Smith, 351 N.C. 251, 524 S.E.2d 28, 44-45 (N.C.) (finding of heinous, atrocious, or cruel aggravator supported by evidence that defendant "coldly and designedly planned and carried out” the murder), cert. denied, 531 U.S. 862, 121 S.Ct. 151, 148 L.Ed.2d 100 (2000); State v. Terry, No. M1999-00191-CCA-R3-DD, 2000 W.L. 284067 at * 11 (Tenn.Crim.App. Mar. 17, 2000) (evidence showed the defendant’s "cold calculated planning of the entire murderous scheme” demonstrated depravity of the mind aggravating factor), aff'd, 46 S.W.3d 147 (Tenn.), cert. denied, -U.S.-, 122 S.Ct. 553, 151 L.Ed.2d 428 (2001).
. The fourth Palmer factor only requires the sentencer to consider the senselessness of the crime, but under Rust, and pursuant to the 1980 Moore sentencing panel’s formulation, the sentencer considers whether the murders were totally and senselessly bereft of regard for human life as evidenced by cold planning, repetitive murders, and the fact that the victims were selected on the basis of their advanced ages. 316 N.W.2d at 41.
. Indeed, the court subsequently stated, Palmer “is constitutional.... [i]t therefore cannot be said that at the time of Moore's [1995] resentencing there existed no constitutionally viable definition of exceptional depravity. The resentencing panel could have applied the Palmer factors.” State v. Moore, 250 Neb. 805, 553 N.W.2d 120, 131 (Neb.1996).
. The Nebraska Supreme Court later agreed with this appraisal in State v. Reeves, 258 Neb. 511, 604 N.W.2d 151, 168-69 (Neb.2000), wherein it found that under Nebraska's two-tiered system, reweighing and resentencing by an appellate court denies due process.