Last month the United States Supreme Court ruled in Glossip v. Gross 135 S. Ct. 2726 (2015) that the use of midazolam in Oklahoma’s injection protocol was not unconstitutional under the Eighth Amendment. However, in his dissenting opinion, Justice Breyer (joined by Justice Ginsburg) stated that he would ask for a “full briefing” on the more fundamental question of “whether the death penalty violates the Constitution.” Glossip’s lawyers have taken this judicial offering with both hands by filing a writ of certiorari for a rehearing of the case.

The legal team representing Glossip have made the cogent argument that this case speaks to the issues which the Justices identify, including reliability and innocence (Richard Glossip) and arbitrariness and mitigation (John Grant, co-petitioner).

The filing is consistent with the legal process theory applied in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the landmark decision that held that same-sex couples have a right to marry under the Fourteenth Amendment. In Obergefell the Court held that “an individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” Glossip’s lawyers are arguing that the same application of legal process theory can be used to challenge the constitutionality of the death penalty.

In referring to Gregg v. Georgia 428 U.S. 153 (1976), Justice Breyer stated in Glossip that the “circumstances and the evidence of the death penalty’s application have changed radically,” since the court upheld the death penalty in 1976, and so he believed “that it is now time to reopen the question.”

In his dissent, Justice Breyer engaged with the Eighth Amendment of the United States Constitution and considered separately the issues of “Cruel” and “Unusual” punishment. In doing so, he deconstructed the flawed forensic science and (so-called) expert testimony; addressed the question of innocence and increased exonerations; outlined the ways in which the death penalty is arbitrary and the capital judicial process is infected with bias surrounding race, gender, geography, and external political pressures; and highlighted that the punishment fails to appropriately classify the “worst of the worst” criminals.

The complexities necessitated in “[tinkering] with the machinery of death” (per Justice Blackmun in Callins v. Collins 510 U.S. 1141 (1994)), render excessive delays. The architecture and prison protocols create adverse physiological and psychological impacts on the inmates, as affirmed by Glossip’s lawyers citing Amnesty International’s report, Conditions for Death Row Prisoners in H-Unit, Oklahoma State Penitentiary (1994).

In Herrera v. Collins 506 U.S. 390 (1993) the Supreme Court identified that there was a “need for finality in capital cases,” and in Williams v. Taylor, 529 U.S. 420 (2000), the Antiterrorism and Effective Death Penalty Act (1996) was interpreted as promoting, “comity, finality and federalism.” However, in critiquing the efficacy of the death penalty, John Rawls is cogent here when he reasoned that, “[a]t some point, the injustice of the outcomes of a legitimate democratic procedure corrupts its legitimacy.” Instead of promoting comity, finality and federalism, we may now have reached a point where the very application of the US capital judicial process corrupts its own legitimacy. Death sentences and their aftermath reveal that it is a punishment which is a per se violation of the Eighth Amendment.

What Justices Breyer and Ginsburg have requested, and what Glossip’s lawyers from Oklahoma and Arizona have obliged with, is the Enlightenment theory of one of the drafters of the Eighth Amendment. When Senator Samuel Livermore of New Hampshire reviewed the application of the death penalty (and other punishments) within the Eighth Amendment he stated, “[i]f a more lenient mode of correcting vice and deterring others form the commission of it could be invented, it would be very prudent in the Legislature to adopt it” (Annals of Congress, 1789).

The potential rehearing in Glossip could finally end the United States’ struggle with what Walter Benjamin termed the “rotten element of law,” what leading criminologists, such as Roger Hood and Carolyn Hoyle, deem to be an ineffective punishment, and what human rights advocates identify as a fundamental denial of human dignity, the right to life and the prohibition against inhuman punishment.

This petition for a rehearing is another positive step for the abolition of the death penalty in the United States. All eyes are now on the “swing-vote” of Justice Anthony Kennedy. Will he swing and adhere to the historical call of Samuel Livermore?