GINSBURG: Death penalty. For one thing, our jurisprudence is dense and then we have these contributions from Congress like AEDPA [Antiterrorism and Effective Death Penalty Act]. Because we had no death penalty in the District of Columbia, my first year here, I asked my clerks to write a memo so I could become familiar with where the court was on the death penalty. It was dense then and it has gotten only worse.
Ginsburg said she had waited to take such a stance on the death penalty because past justices, "took themselves out of the running," when the did so, leaving, "no room for them to be persuasive with the other justices." She reiterated many of the key points from the dissent, saying, "I think that [Breyer] pointed to evidence that has grown in quantity and in quality. He started out by pointing out that there were a hundred people who had been totally exonerated of the capital crime with which they were charged. so one thing is the mistakes that are possible in this system. The other is the quality of representation. Another is. yes there was racial disparity but even more geographical disparity. Most states in the union where the death penalty is theoretically on the books don’t have executions."