WASHINGTON (AP) — Wherever their summer travels have taken them, Supreme Court justices probably will weigh in on Texas' plans to execute two death row inmates in the week ahead.
If past practice is any guide, the court is much more likely to allow the lethal-injection executions to proceed than to halt them.
Opponents of the death penalty took heart when Justices Stephen Breyer and Ruth Bader Ginsburg made the case against capital punishment in late June as arbitrary, prone to mistakes and time-consuming. Even if death penalty opponents eventually succeed, the timeline for abolition probably will be measured in years, not months.
That's because Breyer, joined by Ginsburg, was writing in dissent in a case involving death row inmates in Oklahoma, and five sitting justices, a majority of the court, believe "it is settled that capital punishment is constitutional," as Justice Samuel Alito wrote in his opinion for the court in that same case.
Texas has scheduled back-to-back executions Wednesday and Thursday for Daniel Lee Lopez and Tracy Lane Beatty.
Lopez was convicted of running over a Texas police officer with his car during a high-speed chase. Lopez' lawyer already has asked the court to stop the execution.
Beatty strangled his 62-year-old mother, then stole her car and drained her bank accounts. He has an appeal pending in lower courts and could also end up at the Supreme Court.
The justices rarely issue last-minute reprieves to death-row inmates. Even after Breyer's opinion calling for a re-examination of capital punishment by the Supreme Court, no justice publicly backed a Missouri inmate's plea to halt his execution to allow the court to take up the constitutionality of the death penalty.
Similarly, the three Oklahoma inmates who lost their high court case now face execution in September and October and want the justices to reconsider the decision from June in light of Breyer's dissent. The court almost never does that.
The heightened attention on the death penalty comes amid declining use of capital punishment in the United States, and a sharp drop in the number of death penalty prosecutions.
The 18 executions that have taken place so far this year have been carried out in just five states — Texas, Missouri, Georgia, Florida and Oklahoma. Nine of those were in Texas. Twelve states with the death penalty have not had an execution in more than five years. That list includes California and Pennsylvania, which between them have more than 900 death row inmates.
The relatively small number of states that actively seek to carry out death sentences underscores what Ginsburg characterized in late July as "the luck of the draw."
"If you happen to commit a crime in one county in Louisiana, the chances you will get the death penalty are very high. On the other hand, if you commit the same deed in Minnesota, the chances are almost nil," she said at a Duke University law school event in Washington.
Texas is far and away the leader in carrying out executions, but it too has seen a drop in the number of new inmates on its death row. No new death sentences have been imposed in Texas this year, said Robert Dunham, executive director of the Death Penalty Information Center.
Geographic disparity was among several defects Breyer and Ginsburg identified in June. Another is the length of time many inmates spend living under a sentence of death, which Breyer had previously suggested also might be a violation of the constitutional ban on cruel and unusual punishment. Six of the 18 men who have been executed in 2015 spent at least 20 years on death row, including one who served 31 years before his execution.
Yet for all the systemic problems opponents of capital punishment can cite, they also have to reckon with what death penalty opponent Michael Meltsner called the "world of brutality and the awful capacity of people to commit violent crimes." One example: The Justice Department, which has otherwise advocated for criminal justice reforms during the Obama administration, won a death sentence in the case of convicted Boston Marathon bomber Dzhokhar Tsarnaev.
"When awful things happen, people don't think about the costs and benefits. They react to circumstances. There is an ambivalence that has tracked the death penalty debate for many years," said Meltsner, a Northeastern University law professor and experienced civil rights lawyer.
Among the questions surrounding the possibility that the Supreme Court would take up the constitutionality of the death penalty is the makeup of the court itself.
With four justices in their late 70s or early 80s, the next president might have the chance to fill several vacancies and could change the court's direction.
"Obviously, the composition of the court matters greatly and the biggest unknown variable about the life of the American death penalty is the presidential election of 2016. My expected time frame for constitutional abolition varies greatly based on the result," said Jordan Steiker, a University of Texas law professor.
It took Breyer and Ginsburg more than 20 years on the Supreme Court to voice their doubt about capital punishment. Justices Harry Blackmun and John Paul Stevens likewise spoke out at the very end of their time on the court.
Steiker said he thinks Breyer's dissent will serve as a road map for death penalty lawyers and future justices who may not feel constrained to wait before grappling with executions.
"It was invigorating to those who'd like to see constitutional abolition," he said. "The arguments not new, but they had not been marshaled as effectively by a justice until this opinion."
RELATED: See photos of notable death penalty executions and people on death row:
Notable death penalty executions and people on death row
Executions likely go on despite strong Supreme Court dissent
Seated on his bunk in the death cell of Iberia Parish Courthouse, convinced that 'The Lord is Still with Me,' is Willie Francis, a 17-year-old who won a million-to-one chance of a reprieve from death when the electric chair failed to kill him, or even hurt him, at his scheduled execution on May 3. Sentenced to die for the murder of a St. Martinville druggist a year ago, Francis was strapped in the chair. The current was applied. The doomed man squirmed and jumped. But when the current was shut off, he was unharmed. 'It tickled a little,' he said. The state will try again to carry out the execution on Thursday May 9th.
(Bettmann via Getty Images)
This is John Wayne Gacy's police arrest photo from Dec. 21, 1978. Following intensive research, investigation and surveillance, Gacy was arrested by the Des Plaines (Ill.) Police Department on Thursday, Dec. 21, 1978. After being charged with and serving time for 33 murders, Gacy was executed in 1994 by lethal injection. Today, Monday, Nov. 23, 1998, technicians began preliminary work on a possible excavation at an apartment building on Chicago's Northwest Side in search of as many as four more possible victims of the mass murderer. The apartment building at one time, was the home of Gacy's mother, and Gacy had done some construction work there. The information regarding the location was recently released from a retired Chicago police officer who said he had seen Gacy carrying a shovel near the area at about 3 a.m. one day in 1975. The former officer reportedly thought little of the Gacy sighting until three years later, when Gacy was charged with 33 murders. The apartment building is about four miles away from Gacy's house.
(Des Plaines Police Department, Tim Boyle)
A portrait of mass murderer Ted Bundy, responsible for a string of murders in Washington state, Utah, and Florida in the 1970s. He was executed in in Florida on January 24, 1989. His actual victim count remains unknown.
(Bettmann via Getty Images)
Aileen Wuornos is shown in this undated photograph from the Florida Department of Corrections. Wournos was executed by lethal injection October 9, 2002 in Florida for murdering six men when she was a prostitute.
(Photo by Florida DOC/Getty Images)
Admitted mass-slayer Charles Starkweather is shown entering court for the second day of his trial for murder. Starkweather admitted killing 11 people and was executed in Nebraska on June 25, 1959.
(Bettmann via Getty Images)
Oklahoma City bomber Timothy McVeigh is shown being escorted from the Noble County Courthouse as he is transported to Oklahoma City for arraignment in this April 22, 1995 file photo. On June 11, 2001, McVeigh was executed after being sentenced to death for the bombing of a federal building in Oklahoma City, a crime that took 168 lives and shook a complacent America to the core.
(Jim Bourg / Reuters)
Gary Gilmore, responsible for the shooting deaths of two men, was executed in Utah on January 17, 1977.
(Bettmann via Getty Images)
Media witnesses to the firing squad execution of John Albert Taylor examine the chair in which Taylor sat as he was shot to death at 12:03 a.m. Mountain time January 26 at the Unita State Penitentiary in Utah. The execution of Taylor was the first by firing squad in the United States since the 1977 execution of Gary Gilmore in Utah.
(POOL New / Reuters)
Stanley 'Tookie Williams' was responsible for several murders and other crimes and was executed in California on December 13, 2005. Williams helped found the Crips gang, but was later nominated for the Nobel Peace Prize for his anti-gang efforts. He authored such books as 'Life in Prison,' encouraging kids to stay out of gangs, and his memoir 'Blue Rage, Black Redemption'.'
(Photo by Justin Sullivan/Getty Images)
Teresa Lewis, convicted of murdering her husband and stepson, was executed in Virginia on September 23, 2010. She was the first woman executed in the state in nearly 100 years.
(REUTERS/Virginia Department of Corrections/Handout)
William Bonin (left), a 33-year-old truck driver and registered sex offender, was accused of the 'torture' murders of at least 13 and possibly 21 young males, suspected victims of the so called 'Freeway Killer. He was executed in California on February 23, 1996.
The Los Angeles County Sheriff's Department also said Vernon Butts (right) was an accomplice in at least six of the 21 murders.
(Bettmann via Getty Images)
Dzhokhar Tsarnaev, responsible for Boston Marathon bombing, was sentenced to death on May 15, 2015.
(Photo by VCG Wilson/Corbis via Getty Images)
Major Nidal Malik Hasan, the U.S. Army psychiatrist charged in a mass shooting at the U.S. Army post in Fort Hood, Texas, was sentenced to death on August 28, 2013.
(Ho New / Reuters)
Joseph E. Duncan III, a convicted murderer and sex offender, was sentenced to death on August 27, 2008.
(Photo provided by Kootenai County Sheriff's Department via Getty Images)
Coy Wesbrook was executed in 2016. He fatally shot five people in 1997 with a hunting rifle in a killing spree launched when he found his ex-wife having sex with other men.
(REUTERS/Texas Department of Criminal Justice/Handout via Reuters)
Dylann Roof, the man convicted of murdering nine worshippers at a historic black church in Charleston was condemned to death by a federal jury on January 10, 2017.
(REUTERS/Charleston County Sheriff's Office/Handout)
Death row inmate Ricky Gray is shown in this undated photo released in Washington, DC, U.S. in 2016. Virginia Department of Corrections/Handout via REUTERS ATTENTION EDITORS - THIS IMAGE WAS PROVIDED BY A THIRD PARTY. EDITORIAL USE ONLY.
Christopher Wilkins, 48, Texas death row inmate convicted of killing two people in a revenge plot after one had tricked him in a $20 drug deal, is shown in this undated photo in Huntsville, Texas, U.S.. Courtesy Texas Department of Criminal Justice/Handout via REUTERS ATTENTION EDITORS - THIS IMAGE WAS PROVIDED BY A THIRD PARTY. EDITORIAL USE ONLY.
Deathrow inmate Mark Asay is pictured in this undated handout photo obtained by Reuters August 14, 2017.
He was executed by a lethal injection that included a drug never before used in a U.S. execution, state officials said.
(Florida Department of Corrections/Handout via REUTERS)
Vernon Madison, one of Alabama's longest-serving death row inmates, pictured in this handout photo, to is set to be executed at William C. Holman Correctional Facility in Atmore, Alabama, United States on May 12, 2016 even as the U.S. Supreme Court has ordered a review into whether the state's current sentencing scheme is constitutional.
(Alabama Department of Corrections/Handout via REUTERS)