Skip to content
Subscriber Only

Justice Breyer Resurrects an Old Debate: Is the Death Penalty Constitutional?

The liberal justice wrote that the death penalty is unreliable, arbitrary, cruel and increasingly unusual.
984627-001
Photograph: Getty Images

In a blow to what the Justice Clarence Thomas called "death penalty abolitionists," the court ruled Monday that Oklahoma's use of the drug midazolam in executions did not count as cruel and unusual punishment.

But Monday's ruling also came with a face off between two of the court's liberal judges (Justices Stephen Breyer, joined by Ruth Bader Ginsburg) and two of the court's conservatives (Justices Antonin Scalia and Clarence Thomas) over whether the death penalty itself is constitutional.