THIS year marks the 40th anniversary of Gregg v Georgia, the Supreme Court case that reintroduced the death penalty to America. Capital punishment had been halted in 1972 when five justices determined it to be “arbitrary and capricious” in violation of the bar on “cruel and unusual punishments” in the eighth amendment. But four years later, the court found that new state laws had mended the death penalty’s main defects, and the executioner was called back from retirement. In the first few years following Gregg, only a handful of people were put to death. By 1999, the number of executions reached a peak of 98 before beginning to fall again after the century’s turn. Thus far in 2016, only 20 people have been executed in America, the fewest since 1984.

As executions dwindle, the discussion about America’s system of capital punishment has shifted. Less energy is devoted to debating the death penalty’s supposed purposes of deterrence and retribution; more discussion, and litigation, revolves around peripheral issues like exempting children and the intellectually disabled from capital punishment, the relative roles of juries and judges in issuing death sentences, and the constitutionality of certain execution methods that may cause suffering before death.

But in recent years Justice Stephen Breyer, the 78-year-old Bill Clinton appointee who is serving his 23rd term on the bench, has waged a one-man battle against the death penalty itself. In 2015, he wrote a long, scathing dissent to a 5-4 decision upholding Oklahoma’s use of a lethal-injection drug that had caused several prisoners to suffer through botched executions in which they yelled and writhed in pain. Rather than “try to patch up the death penalty’s legal wounds one at a time”, he wrote, the justices should again take up the fundamental question of “whether the death penalty violates the constitution.” Leaving little doubt as to his view on that matter, Mr Breyer wrote that capital punishment is “unreliable”, risks killing innocent people, is applied arbitrarily and has been “abandoned” in more and more states. He also highlighted the long and growing delays between sentencing and execution—lags he saw as inconsistent with the purposes of punishment.

The delay issue grabbed Mr Breyer’s attention again this month, when he explained why he would have granted a hearing to Henry Sirechi, a Florida man who was convicted of murdering an Orlando car salesman and sentenced to die in 1976. Mr Sirechi “has lived in prison under threat of execution for 40 years”, he wrote, dissenting from the court’s refusal to hear his case. “When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born”. In 1890, he noted, the Supreme Court had a delay “of four weeks, not 40 years” in mind when it said that “a prisoner’s uncertainty before execution is ‘one of the most horrible feelings to which he can be subjected’“. The average time spent in prison between sentencing and execution, Mr Breyer lamented, has risen from 12 years to over 18 years since 1999.

What is so worrisome about these delays? Jeffrey Reiman, a philosopher, wrote in 1985 that execution is “characterised by a special and intense psychological pain that distinguishes it from the loss of life that awaits us all’. A death “whose coming is foreseen by its victim”, he wrote, is “worse than sudden death, because a foreseen death adds to the loss of life the terrible consciousness of that impending loss.” Sitting on death row for years stretching into decades unconscionably prolongs the horror of anticipating one’s death, Mr Breyer implied, and may amount to cruel and unusual punishment.

In announcing his displeasure with the court’s unwillingness to hear Mr Sirechi’s case, Mr Breyer pointed to other recent death-penalty appeals he wishes his colleagues had agreed to hear. One was the case of Robert Smith, an Alabama man who was sentenced to life without parole by the jury but who saw that punishment enhanced to death by his judge. On December 8th, Mr Smith lobbed a series of appeals to the justices only to see his pleas divide the justices 4-4. One vote shy of a reprieve, Mr Smith was executed that very night. His lethal injection included midazolam, the questionable drug deemed acceptable by the court in 2015; Mr Smith heaved, coughed and clenched his fist for 13 minutes of the 34-minute procedure. Mr Breyer was similarly dismayed by the court’s handling of the case of Romell Broom, a man Ohio tried to kill by lethal injection in 2009. Mr Breyer noted that the medical execution team “tried for over two hours to find a usable vein” in which to run the IV for the lethal cocktail, “repeatedly injecting him with needles”—painfully but to no avail. A fresh attempt to end Mr Broom’s life might violate the eighth amendment, Mr Breyer wrote, yet four of his colleagues refused to consider the question.

With the window closing on Barack Obama’s nomination of Merrick Garland to take Antonin Scalia’s seat, the Supreme Court’s balance of power between death penalty sceptics and supporters is unlikely to change. Chances are nil that Justice Breyer will soon find four colleagues on the bench willing to reconsider the decision that revved up the machinery of capital punishment four decades ago. It appears that the death penalty in America will continue its long, slow demise with tweaks and occasional sparks, but no sweeping rulings, from the justices.