Death penalty opponents are hoping -- and death penalty supporters are nervous about -- a moratorium. Everyone knows the history in Europe. After years of moratoriums, politicians decided that they could go ahead and abolish a practice that was not in use anyway.
That is the strategy abolitionists intend to take here. Straight up abolition is tough, even in sympathetic states such as Maryland and New Jersey. But moratoriums are more doable and could lead, they believe, to abolition in the long run. Numerous courts have found that lethal injections are poorly administered and can inflict great pain, which has led to moratoriums in more than 10 states in the past year.
Death penalty opponents have changed tactics in recent years, attacking not the morality of execution but other issues surrounding them, such as questions of innocence and, most prominently now, methodology.
Only Nebraska, among the death penalty states, does not use lethal injection as its primary method of execution, thanks to a state senator who opposes the death penalty and hopes that the state Supreme Court will find electrocution unconstitutional, leaving the state without a method.
It's possible that the Supreme Court will leave other states (and the federal government) with the difficult task of finding a humane method of execution if they find that lethal injections are unconstitutional.
But this Court has been supportive overall of the death penalty. I wonder whether the justices have not taken the case in hopes of clearing up the lethal injection complaints once and for all, insuring that they can be used (if only, perhaps, in carefully limited circumstances).