Protesters calling for an end to the death penalty unfurl a banner before police arrest them outside the U.S. Supreme Court in Washington, Jan. 17, 2007. Reuters/Jason Reed

By Lawrence Hurley

WASHINGTON (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 Scheiddeger, 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.


Although death penalty opponents are now on alert that Breyer and Ginsburg are interested in a case that squarely attacks the death penalty, it could take time for the right case to come to the court. In the meantime, if the court-watchers' interpretations of Breyer and Ginsburg's moves this summer are accurate, the justices will likely continue to consider more discrete legal issues that nibble around the edges of the bigger constitutional question.

The case this fall most likely to attract public attention to capital punishment involves allegations of prosecutorial misconduct in Georgia. In that case, a black man, Timothy Foster, was sentenced to death by an all-white jury, and the question before the Supreme Court will be whether prosecutors unlawfully struck potential black members of the jury. [ID: nL1N0YH22B]

Two other cases scheduled for the session will focus on narrower, state-specific issues concerning the death penalty process in Kansas and Florida.

The high court has not seriously debated the constitutionality of the death penalty since the 1970s. In 1972, the justices effectively suspended it in the landmark Furman v. Georgia decision, ruling that the punishment was being imposed unconstitutionally. But the decision allowed states to re-write their laws to address the problem. Within four years, the court had approved new standards for death penalty cases, saying that, if states conformed to them, the punishment was constitutional.

The death penalty is on the books in 31 states, and the federal government also authorizes the punishment in cases it prosecutes.

There are signs that the U.S. public is turning away from the death penalty. The number of death sentences imposed fell to a 20-year low in 2014, according to the Death Penalty Information Center.

The high-profile ruling in June, Glossip v. Gross, came at a time of increased focus on the death penalty following several botched executions. The lead plaintiff in that case, convicted murderer Richard Glossip, received a last minute stay from the Oklahoma Court of Criminal Appeals on Sept. 16, after filing new court papers claiming his innocence. His execution has since been rescheduled for Sept. 30 absent further court intervention.

(Reporting by Lawrence Hurley; Editing by Amy Stevens and Sue Horton)