The U.S Supreme Court declined today to grant the appeal of a Texas death row inmate who claims race was improperly taken into consideration during the sentencing phase of his trial.

Duane Buck’s guilt for the death of his former girlfriend was never at issue, but Buck sought a new sentencing hearing because of testimony that contended that he posed a greater danger because he is black.

On Sept. 15, the court had halted Buck’s scheduled execution in order to review his case. But today, over the dissent of at least two justices, the court declined to rule in Buck’s favor.

Several justices took the rare step of publishing their reasoning in the case.

Buck’s lawyers had argued in the lower court that he should not be executed because Texas relied on improper racial testimony that was a basis for his capital sentence. At trial, psychologist Dr. Walter Quijano testified that Buck was African American and his race increased the likelihood of his being dangerous in the future.

“You have determined,” a prosecutor asked Quijano during cross-examination, that “the race factor, black, increases the future dangerousness for various complicated reasons. Is that correct?” “Yes,” said the doctor, according to court transcripts.

Justices Samuel Alito, Antonin Scalia and Stephen Breyer released a statement today that said while the case concerns “bizarre and objectionable testimony” at the penalty phase of Buck’s capital trial, Quijano had been initially called to the stand as a defense expert by Buck’s lawyers.

“Dr. Quijano’s testimony would provide a basis for reversal of petitioner’s sentence if the prosecution were responsible for presenting that testimony to the jury” the three justices wrote. “But Dr. Quijano was a defense witness and it was petitioner’s attorney, not the prosecutor, who first elicited Dr. Quijano’s view.”

The case was complicated by the fact that other inmates in other cases had been granted new sentencing hearings by the State of Texas because of similar testimony by Quijano. But Alito, Scalia and Breyer said, “The fact remains that this case is different from all the rest.”  The justices said, “This is the only case in which it can be said that the responsibility for eliciting the offensive testimony lay squarely with the defense.”

Justice Sonia Sotomayor, joined by Justice Elena Kagan, issued a written statement objecting to the court’s denial of Buck’s appeal. “Today the court denies review of a death sentenced marred by racial overtones,” Sotomayor wrote. She said that while the defense had called Quijano as a witness, the context of the prosecutions questions were “markedly different.”

On direct examination Sotomayor wrote, “Quijano referred to race as a part of his overall opinion that Buck would pose a low threat to society were he imprisoned.”

But the prosecutor revisited the issue, Sotomayor said, “in a question specifically designed to persuade the jury that Buck’s race made him more dangerous and that, in part on this basis, he should be sentenced to death.” Kate Black, and attorney for Duane Buck, who works for the Texas Defender Service released a statement after the Supreme Court’s decision.

“We are disappointed that the U.S. Supreme Court has for now declined to review Duane Buck’s case and will not be considering whether the reliance on Mr. Buck’s race as a basis for asking the jury to sentence him to death violated the Constitution,” she said. “It is now up to the State of Texas to ensure that Mr. Buck receives a sentencing hearing that is not impacted by the color of his skin.”