The moves were in keeping with the court’s general approach in this area. It has been open to cutting back on the availability of the death penalty but not inclined to test its constitutionality.
Justice Stephen G. Breyer, dissenting in Glossip v. Gross last year, urged his colleagues to consider the larger question. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”