Justices Stephen G. Breyer and Clarence Thomas squared off Nov. 13 with dueling writings stemming from the high court’s refusal to take up several death penalty cases.

The rejections also spurred Justice Sonia Sotomayor to write separately on the issue, as she has done several times already this term.

The case of Michael Gordon Reynolds as well as several other petitions recently denied called on the court to apply its 2016 decision in Hurst v. Florida. In Hurst, the court said Florida’s death penalty scheme violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.

Florida’s Supreme Court has applied Hurst retroactively to capital defendants whose sentences became final after the U.S. Supreme Court’s 2002 decision in Ring v. Arizona, where the court said Arizona’s death penalty scheme violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.

But the state top court has declined to apply Hurst retroactively to defendants whose sentences became final before Ring.

Breyer questioned the state court’s 2002 cut-off and used his separate writing—styled a statement “respecting the denial of certiorari"—to discuss broader concerns about the death penalty. He noted the court has denied review in over 80 similar cases in recent weeks.

Breyer said Reynolds’ case and others raise multiple issues: “the unconscionably long delays that capital defendants must endure as they await execution,” the pre-2002 retroactivity issue, and the question whether the Eighth Amendment requires a jury rather than a judge to make the ultimate decision to sentence a defendant to death.

Taken together, these issues raise the question whether the juries in these cases truly rendered a “community-based judgment that the sentence constitutes proper retribution,” Breyer wrote. Had jurors known about these issues at the time of sentencing, “some might have hesitated before recommending a death sentence,” Breyer said.

“At least a few might have recommended a life sentence instead,” he said. “The result is that some defendants who have lived under threat of execution for decades might never have been sentenced to death in the first place.”

Breyer called on the court once again to take on the constitutionality of capital punishment generally, a prospect it declined last term.

Thomas devoted his concurrence in the denial of review to rebutting Breyer’s concerns. He began with a recitation of the facts of Reynolds’ case. The defendant murdered “nearly an entire family” in 1998, Thomas noted, going on to recount the vicious details of the crime.

In light of Reynolds’ actions, Thomas has “no such worry” similar to Breyer’s that the jury’s decision for retribution was proper.

Thomas then said Breyer’s broader concerns are unwarranted, including Breyer’s concern about the death penalty generally. “The only thing ‘cruel and unusual’ in this case,” Thomas wrote, “was petitioner’s brutal murder of three innocent victims.”

Sotomayor acknowledged that Reynolds and others have been convicted of “gruesome crimes.” But she dissented from the court’s refusal to hear their cases because, she said, “it is this Court’s duty to ensure that all defendants, even those who have committed the most heinous crimes, receive a sentence that is the result of a fair process.”

The case is Reynolds v. Florida, U.S., 18–5181, review denied 11/13/18.