(Reuters) - When the last U.S. Supreme Court term ended in June with an unusual showdown over a decision approving Oklahoma's lethal injection process, some court watchers saw it as a sign the court might soon take up the bigger question of the constitutionality of the death penalty itself.
But more recent signals from the court suggest that such a broad ruling is not likely any time soon, even though there are three death-penalty cases already on the docket for the new term, which begins Oct 5.
In the June case, which upheld Oklahoma's procedures by a 5-to-4 margin, liberal justices Stephen Breyer and Ruth Bader Ginsburg joined in a dissenting opinion that called for a full reexamination of capital punishment. As currently applied, Breyer wrote, the death penalty "likely constitutes a legally prohibited 'cruel and unusual punishment.'"
Within two weeks of that June 29 decision, however, Breyer and Ginsburg indicated that they don't intend to raise their concerns in every death penalty case that comes before them.
On July 14, the court rejected last-minute stay applications filed by Missouri inmate David Zink. In one of his court filings, Zink had asked the court to rule that the death penalty was unconstitutional.
The court often rejects stay-of-execution applications without comment or a record of how justices voted, but it does note if justices publicly dissent, and neither Breyer nor Ginsburg did.
This month, the court rejected a similar stay application from another Missouri inmate, Roderick Nunley. Again, neither Breyer nor Ginsburg publicly dissented and the inmate was executed.
Their silence indicated that Breyer and Ginsburg were "not quite in the category of adamant opposition in all cases," said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.
In any event, since four votes are needed to accept a case for consideration by the court, Breyer and Ginsburg would need two more justices to join them in support of hearing a case directly challenging the death penalty.
Fellow liberal justices Sonia Sotomayor and Elena Kagan also dissented in the Oklahoma case, but neither joined Breyer's opinion.
The court's conservatives would be expected to uphold the death penalty, with Justice Anthony Kennedy, a conservative appointed by President Ronald Reagan, likely to be the swing vote. He joined liberals in the majority in 2002, when the court banned death sentences for the mentally disabled, and in a 2005 case in which the court said that people sentenced to death for offenses committed as juveniles could not be executed. But he voted with his fellow conservatives in June's lethal injection case.
Some death penalty experts have suggested that Breyer's dissent in the Oklahoma case may have been carefully aimed. He was "writing not just for the public, but for Justice Kennedy," said Robert Dunham, executive director of the Death Penalty Information Center, a nonprofit that tracks the issue and does not take a stand on whether capital punishment should be abolished.
Source: Reuters, Lawrence Hurley, Sept. 21/22, 2015
