Yesterday, the Supreme Court voted along its usual ideological lines to uphold the use of a specific sedative employed in executions by lethal injection. Justices Breyer and Ginsburg, however, raised serious questions about the whole concept of capital punishment, and whether it is Constitutional.

This is how Justice Scalia responded to the constitutionality of the death penalty simply being raised:

[I] write to respond to Justice Breyer’s plea for judicial abolition of the death penalty. Welcome to Groundhog Day. The scene is familiar. . . . A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. . . . Even accepting Justice Breyer’s rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook. . . . The suggestion that the incremental deterrent effect of capital punishment does not seem “significant” reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. . . . As Justice Breyer concedes, for more than 160 years, capital sentences were carried out in an average of two years or less. But by 2014, he tells us, it took an average of 18 years to carry out a death sentence. What happened in the intervening years? Nothing other than the proliferation of labyrinthine restrictions on capital punishment, promulgated by this Court under an interpretation of the Eighth Amendment that empowered it to divine “the evolving standards of decency that mark the progress of a maturing society.”

What was the case about that led to Scalia’s most recent tirade?

The case stems from the botched execution of convicted murderer Clayton Lockett in April 2014. His execution was halted less than twenty minutes into the procedure after a vein ruptured. According to the BBC, Lockett was in obvious pain over the next twenty-three minutes before death occurred. An Oklahoma Department of Corrections spokesperson reported that the executioner had placed the needle incorrectly, causing the vein to rupture.

According to anesthesiologist Stanley Deutsch, who developed the “triple-drug cocktail” for the state of Texas in the early 1980s, execution by lethal injection is “extremely humane.”  Others aren’t so sure, however. It is possible that after the first or second drug, the prisoner may still be conscious and in pain – but unable to cry out. If that is the case, dissenting Justice Stephen Breyer says that such a method of execution is in violation of the Eighth Amendment prohibition against “cruel and unusual punishment.” Furthermore, Breyer points out that wrongful executions do take place. The Death Penalty Information Center has published a list of ten individuals who very well may have been innocent of the crimes for which they were convicted – yet were put to death. (It should also come as no surprise that six of the ten were either African-American or Hispanic and convicted in Southern states.) According to an article published in 2010 by the Northwestern University School of Law Center on Wrongful Convictions, there may have been close to 40 more such wrongful executions since executions in the U.S. resumed in the wake of Gregg v. Georgia in the 1970s.

Justices Breyer’s dissent promises to re-ignite the national debate over capital punishment. It has also provoked a response from Justice Antonin “Jiggery-Pokery” Scalia, who stated that Breyer’s opinion was “gobbledy gook” and “elitist.”

Given the current makeup of the SCOTUS and conservative control of Congress, it is unlikely that the U.S. will join other G7 nations in abolishing the death penalty anytime soon. But the dissenting opinion, as well as Justices Breyer and Bader-Ginsberg’s call for the Court to reconsider the decision means the issue is not going away – and may play a significant role in the 2016 elections.

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K.J. McElrath is a former history and social studies teacher who has long maintained a keen interest in legal and social issues.