Someone has taken up Justice Stephen Breyer's invitation to challenge the constitutionality of the death penalty.
Breyer suggested in a dissenting opinion last month that the death penalty "very likely violates the Eight Amendment," and called for the U.S. Supreme Court to address "that very basic question."
The plaintiffs who lost Glossip v. Gross, the case pertaining to Breyer's dissent, on Friday filed a petition for the high court to re-hear their case.
The plaintiffs, all inmates on Oklahoma's death row, challenged the use of midazolam, the controversial drug used in several botched lethal injections. When the Supreme Court ruled against them, new execution dates were set almost immediately.
Richard Glossip, the lead plaintiff in the case, is now scheduled to be the first executed, on Sept. 16.
The plaintiff's attorneys are now arguing in their petition for a more basic reason to eliminate the death penalty: Glossip is innocent.
"That’s what I wanted them to do them the first time," Glossip told The Huffington Post by phone Friday of his attorney's argument. "We’re fighting. That’s all that matters."
"It would be appropriate for the Court to use this case to address the constitutionality of the death penalty because the outcome will turn not on facts specific to any single litigant, but on circumstances common to the administration of the death penalty," the petition reads.
Breyer wrote in his dissent that the “circumstances and the evidence of the death penalty’s application have changed radically” since the court upheld the constitutionality of the death penalty nearly 40 years ago.
The unusually fiery oral arguments in Glossip v. Gross were only a warmup to the scathing dissenting opinions the liberal justices would eventually pen -- opinions Justice Antonin Scalia dismissed as "gobbledy-gook."
“It’s a long shot, but the Breyer dissent was inviting people to challenge the death penalty," Kathleen Lord, one of Glossip's attorneys not involved in the latest Supreme Court filing, told The Huffington Post Friday. "They just accepted the invitation."
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