If memory serves me right, the Omnipotent Court-- I mean the Supreme Court--banned the death penalty in the past, unconstitutionally in my opinion, and this article even mentions the possibility of them doing that if it weren't for the current 6-3 conservative majority on the court.

I don't believe in the "living Constitution" either, but many in America do and accept the Supreme Court as our permanently-sitting, unelected constitutional convention...