The death penalty will not get its day in court this year (at least not in the highest court in all of Americaland).

Only two of the court’s eight justices (Breyer and Ginsburg) showed interest in hearing the appeal of a Louisiana man convicted of killing his pregnant former girlfriend.

According to Reuters:

The justices, who have sharply disagreed among themselves over capital punishment, declined to consider the appeal brought by Lamondre Tucker, who was sentenced to death for the 2008 murder of 18-year-old Tavia Sills in Shreveport. Sills, nearly five months pregnant, was shot three times and her body was dumped in a pond.

Tucker, who is black, had argued in part that black males had an increased likelihood of being convicted of murder and sentenced to death in Louisiana’s Caddo Parish due to endemic racism.

At the time of Tucker’s conviction, a Confederate flag, symbol of the pro-slavery Southern states that lost the U.S. Civil War that ended in 1865, flew outside the county courthouse, his lawyers said in court filings.

Breyer wrote that Tucker “may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely geography.”

“One could reasonably believe that if Tucker had committed the same crime just across the Red River in, say, Bossier Parish, he would not now be on death row,” Breyer said.

Breyer’s comments echoed similar remarks he made in June 2015 when the court upheld Oklahoma’s lethal injection procedures.

The shorthanded court has steered clear of taking major cases since the February death of Justice Antonin Scalia, but even at full strength may not have accepted this one.

There is no indication the court is any closer to taking a case that would challenge the death penalty directly, with the court’s two other liberals, Sonia Sotomayor and Elena Kagan, not joining Breyer’s opinion. Four votes are needed for the justices to hear a case.

Justice Breyer penned the brief, two-page dissent:

Justice Breyer Capital Punishment Dissent

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