SCOTUSBlog tells me that there should be an actual opinion on one of the argued cases as compared to the per curiam jobs we had thus far. As noted here, along with opinions related to orders, some death penalty issues were dealt with all the same. In fact, perhaps Justice Sotomayor's first on record vote involved a dissent from a death penalty order. A borderline retarded (some say that's half-right) murderer was just executed. Interestingly, here's something for SC nerds, Justice Sotomayor was the only one on record supporting a stay (middle 12/3 order). Linda Greenhouse also wrote about two per curiams on this subject.
Johnson v. Bredesen was one of Justice Stevens' opinions (here joined by his long term supporter of the cause, Breyer) dealing with death penalty orders. Here he was concerned with the long delays of execution, over two decades in solitary confinement, in large part because of state delays and procedural problems. For instance, having a credible claim of evidence, the right to see key evidence was not present for over a decade. Since execution after decades of delay (he cited a case involving a thirty year delay) is cruel and unusual in his view, the procedural problems (due process) is but half the trouble.
Justice Thomas, as he did in the past, rejected this view. He does not find it compelled by the Constitution, though he should respect lone wolf views in that regard. Comparing Stevens/Breyer's past opinions on the same might lead some to a contrary conclusion. Thomas in effect blames the delay on the defendant as it is his fault that there are various problems with the death penalty, including new evidence coming out years after a guilty verdict, often evidence in no way present at the time. There is a Catch 22 -- due process takes time, so what is too much -- but perhaps (as Stevens noted) that is a flaw in the death penalty system overall.
Thomas finds it absurd to think the death penalty -- originally understood to be okay in a very different time and criminal justice system -- is unconstitutional, so this cannot be right. He also takes a shot at citation of foreign opinion on this issue, but such citation is only used as informative. It is our Constitution, our "cruel and unusual" provision being interpreted. All same, just as foreign courts do in respect to our own rulings (or state courts in our own system do regarding other states), foreign rulings (here in countries where the death penalty still is legal) can be informative. Justice Breyer covers the ground well here.
Thomas debates Stevens over procedure, which I will lead to experts, though Thomas often is in the dissenting side in such matters anyways. He also alleges Stevens' reads on "policy" disputes on the "retribution and deterrence" secured by delays of executions. Thomas is not really only debating Stevens, but Supreme Court precedent, since these factors were used since Gregg v. Georgia (which Stevens' co-wrote) to help determine the constitutionality of the death penalty.
Justices Brennan, Marshall, Blackmun and Stevens (and Powell, according to his biographer, after retirement) opposed the death penalty on constitutional grounds for various reasons. The length of stay on death row is surely a somewhat ironic grounds; it is after all but one, plus is telling all the same. A trivial wait in contrast was deemed unjust by the Supreme Court in 1890:
Nor can we withhold our conviction of the proposition that when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it, which may exist for the period of four weeks, as to the precise time when his execution shall take place.
I argued in the past that life imprisonment might be worse than death but not the death penalty. An op-ed basically said the same thing. If the death penalty is going to amount to something comparable, why not cut to the chase, save time and probably some constitutional problems, and just make it a life without parole situation?