Breyer's dissent was joined only by Justice Ruth Bader Ginsburg. Some advocates believe they can picking up the votes of Justices Sonia Sotomayor, Elena Kagan, and Anthony Kennedy. Much has changed since the Supreme Court reinstated the death penalty in 1976, four years after it had effectively struck it down. Last year, only seven states carried out executions. Nineteen states and the District of Columbia have abolished the death penalty entirely, seven of them in the last decade. Governors and courts have imposed moratoriums in others, and the number of death sentences and executions continues to drop. The Supreme Court has barred the execution of juvenile offenders, people with intellectual disabilities and those convicted of crimes other than murder in the last decade. The more cautious, step-by-step approach would ask the court to further narrow the availability of the death penalty by forbidding the execution of mentally ill people and of accomplices who did not kill anyone. The more assertive one would introduce a broad case aimed at the death penalty itself. A Texas case could serve as the right vehicle to mount a broad challenge. It concerns Julius Murphy, who was convicted of robbing and killing a stranded motorist. One of his lawyers, Neal Katyal, a prominent Supreme Court litigator and a former law clerk to Justice Breyer, said that after Breyer’s dissent, “the time to test his views in the crucible of argument before the full court has come.”
In a dissent last June, Supreme Court Justice Stephen Breyer invited a major challenge to the constitutionality of capital punishment. Justice Antonin Scalia later suggested that the court's more liberal justices would strike down the death penalty. The New York Times reports that lawyers and activists opposed to the death penalty are bitterly divided about how to proceed. Some say it is imperative to bring a major case to the court as soon as practicable. Others worry that haste may lead to a losing decision that could entrench capital punishment for years. “If you don't go now, there's a real possibility you have blood on your hands,” said Robert Smith Harvard Law School. Yet many veteran litigators have suffered stinging setbacks at the high court, and they favor an incremental strategy. They would continue to chip away at the death penalty in the courts, seek state-by-state abolition and try to move public opinion.