"Will Justices Breyer and Kennedy Allow An Execution They Know (or Should Know) is Unconstitutional?"

The title is from an article written yesterday because Breyer (joined by Ginsburg) a couple weeks ago said that it was "highly likely" that the death penalty is unconstitutional and would have asked briefing on the question. The other two dissenters merely rested on the problems with the lethal injection itself though Glossip himself had a case on the merits too. See that link for some more comments from myself on the death penalty.

There were a variety of orders today regarding David Zink trying to not be the first person since the Glossip case to be executed. Zink confessed, showing the authorities when he buried the young woman victim.*  His past crimes and this one underline Zink is a worse case scenario:

In 2001, Zink who had been recently released from prison after serving 20 years on rape, abduction and escape charges, rear-ended Morton’s car on an exit ramp after she had just left her boyfriend’s home in Springfield. He then decided to abduct and kill her as he was worried of going back to prison if she called the police, according to court documents. Police found Morton’s car abandoned with the keys in the ignition and the engine running. Her purse, credit card and medication were left in the car.  

Amnesty International and a state group against the death penalty had a few things other than the basic illegitimacy of the death penalty even here.  There were a few problems with the trial, including involving introducing of evidence of early brain damage. Plus, though this doesn't look like someone you wanted on the outside, it was argued he was a model prisoner.  Others will say he was a model candidate for the death penalty. Either way, he was executed not too long ago.

Anyway, as in the past, the liberals were silent ... this time not even voting to dissent from a denial of a stay, habeas relief or a cert. petition denial regarding a request (per Breyer/Ginsburg) to examine if the death penalty itself is unconstitutional.  Now, I am not surprised as such that the liberals as a whole or I guess maybe these two did not vote publicly to grant cert. The fifth vote was not there as seen by Kennedy not even waiting at first to allow an execution in the state whose procedures they decided to examine in Glossip.  Cert petitions are not taken merely for academic purposes and the liberals do not want to force Kennedy to join the other conservatives to firmly hold the death penalty itself in constitutional.  As he would have.

But, after saying they thought it "highly likely" the death penalty is unconstitutional and saying they would hold full briefing on the question, why didn't they say anything today?  I think they had a moral duty to explain themselves. Of course, they don't have an actual duty to explain themselves though at times justices have bragged how federal judges are special since they have to explain their reasoning. At times.  Like RBG saying the reason they didn't take a same sex marriage case at first was because there was no circuit split, there is some b.s. going on. There, it was because matters of special importance (like a significant change of the law of marriage) also provide a reason to grant cert. even without a circuit split (this doesn't mean not taking a case was wrong necessarily but her comment misled). 

Here it is for not explaining to the public why they let someone die after two of them said it was "highly likely" the death penalty itself -- no matter how it is applied -- is unconstitutional. Wrong. Sorry, Notorious RBG. Disappointed in you and Breyer.

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* The title appears to be wrong in regard to the rape in this case.