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The uncharitable read is that Kavanaugh is bemused by all these death row appellants challenging the humanity of lethal injection and is actively shopping for states to bring back firing squads in hopes that the condemned stop bitching. (Photo: Getty)

The uncharitable read is that Kavanaugh is bemused by all these death row appellants challenging the humanity of lethal injection and is actively shopping for states to bring back firing squads in hopes that the condemned stop bitching. (Photo: Getty)

Supreme Court Draws, Quarters The Eighth Amendment

The most disturbing and grotesque of originalist fantasies is now law

Elie Mystal

If Ramsay Bolton were made real and installed on the U.S. Supreme Court, he would sound exactly like Neil Gorsuch in today’s opinion in Bucklew v. Precythe. While the opinion is dressed in all the civilized finery one expects from a high court decree, those trappings do not hide the savagery and cruelty animating its existence. This decision is evil, and if that seems like too strong a word for you, then I encourage you to go get f*cked because your inability to speak out against horror is one of the reasons we’re being dragged back into the Dark Ages.

The facts of Bucklew are simple and unconverted. Russell Bucklew was convicted of murder and sentenced to death by the state of Missouri. Bucklew has a rare medical condition that would make lethal injection extremely painful for him before he died. He challenged his death sentence under Eighth Amendment prohibitions against cruel and unusual punishment. Nobody disputes that the lethal injection would cause Bucklew quite a bit of pain, due to his condition.

Despite that, the lower courts ruled against him, and today, the Supreme Court did so as well. Writing for a 5-4 majority, Justice Neil Gorsuch held that “The Eighth Amendment forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death.”

If that were the end of it, the opinion would just be another blood stain in our sad jurisprudence of death. Unknown numbers of innocent people have been executed in this country since the death penalty was reinstated. Untold numbers of guilty people have known the spiteful vengeance some people mistake for justice. Through it all, the Eighth Amendment sits on the sidelines, a grand idea neutered by our society’s rage and cowardice, waiting for better men and women to live up to its noble promise.

But Neil Gorsuch is not a better man. Instead of just killing the murderer and being done with it, Gorsuch could not resist seeing the Bucklew case as an opportunity to experiment with justifications of the state’s right to inflict suffering that have long been discarded by decent people.

Gorsuch, as you know, is an “originalist,” and the Eighth Amendment has always been an opportunity for such people to prove that their intellectual commitments trump any human suffering their philosophy requires. Obviously, capital punishment existed at the time the Constitution was written, and continued to exist after it and the Bill of Rights were ratified. The Founders didn’t explicitly ban capital punishment, and they could have, so it must be okay as a Constitutional matter, so the originalist chant goes.

Any simple-minded hobgoblin can come up with that logic, but the master originalists then use all of the medieval tortures and punishments no longer in use at the Founding to justify our current tortures and punishments as well within the bounds of the Eighth Amendment.

Any simple-minded hobgoblin can come up with that logic, but the master originalists then use all of the medieval tortures and punishments no longer in use at the Founding to justify our current tortures and punishments as well within the bounds of the Eighth Amendment. Instead of viewing our Founding position as a floor, the originalist views it as a ceiling. (In his opinion, Gorsuch also gets a lot of those “discarded” tortures wrong, or at the very least, only looks at what was “discarded” as a punishment for white men.) When it comes to the death penalty, that ceiling is a threat. The originalist points to the Eighth Amendment like a child abuser points to a barren branch: we’re not supposed to see the hope for renewal, we’re supposed to see a switch that can be torn off and used to beat us with.

It’s a minority view. Since the 1950s, the majority view has been: “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Our society might not be “mature” enough to outlaw the death penalty altogether, but our standards of decency are certainly at the point where we shouldn’t be causing people unnecessary pain while we kill them.

But those with minority viewpoints are in the majority on the Supreme Court. In Bucklew, Gorsuch—very cleverly, it must be said—elevates a minority concurrence in an earlier death penalty case to binding Supreme Court precedent. On Slate, Mark Joseph Stern explains how:

In 2008’s Baze and 2015’s Glossip, Thomas and Scalia went further. In both cases, they argued that, as originally understood, the Eighth Amendment only prohibited states from intentionally making executions more painful than they had to be. As Thomas wrote in Baze, an execution only infringes upon the Constitution when “terror, pain, or disgrace” are “superadded.” So long as a state does not “superadd” pain to an execution, it has complied with the Eighth Amendment. Thomas’ theory would effectively shut down challenges to every method of execution unless an inmate had (impossible to obtain) evidence that the state was sadistically and gratuitously increasing the pain of his death.

A majority of the court did not adopt Thomas’ view in either case. And in Bucklew, Gorsuch writes that “revisiting that debate isn’t necessary here.” But he then does exactly that—and adopts Thomas’ interpretation of the Eighth Amendment, effectively overruling 60 years of precedent…

Pay attention to this language [in Gorsuch’s opinion in Bucklew]: According to Gorsuch, “the question in dispute” here is whether lethal injection “cruelly superadds pain” to Bucklew’s death. But that language does not come from Baze or Glossip. It comes from Thomas’ separate opinions, which were joined only by Scalia. With one neat trick, Gorsuch has transformed the “superadds pain” test from a minority viewpoint to binding Supreme Court precedent.

Arguably, any method of execution is now okay unless the executioner says, “I am enjoying this” or, “Because it’ll hurt more.” Not for nothing, this is pretty much the conservative court’s stance on bigotry: it’s all okay unless your tormentor says, “I’m doing this because you are black.” The need for self-reporting malefactors is the most consistent failures of the conservative movement. Or “features,” if torture and bigotry are your thing.

A detailed and sometimes surprising portrait of the ongoing dynamics of the practice.

This opinion is evil.

If you’re a fan of Game of Thrones, you’ll know that the analogy isn’t complete without a stand-in for Ramsay’s dogs. Here, Brett Kavanaugh is eager to do his part, yapping like a rabid animal as his master points him in the direction of more meat. I’ll just quote his fatuous, jerkface concurrence:

In other words, an inmate who contends that a particular method of execution is very likely to cause him severe pain should ordinarily be able to plead some alternative method of execution that would significantly reduce the risk of severe pain. At oral argument in this Court, the State suggested that the firing squad would be such an available alternative, if adequately pleaded. Tr. of Oral Arg. 63–64 (“He can plead firing squad. . . . Of course, if he had . . . pleaded firing squad, it’s possible that Missouri could have executed him by firing squad”). JUSTICE SOTOMAYOR has likewise explained that the firing squad is an alternative method of execution that generally causes an immediate and certain death, with close to zero risk of a botched execution. See Arthur, 580 U. S., at ___–___ (slip op., at 17–18). I do not here prejudge the question whether the firing squad, or any other alternative method of execution, would be a feasible and readily implemented alternative for every State. See McGehee v. Hutchinson, 854 F. 3d 488, 493–494 (CA8 2017). Rather, I simply emphasize the Court’s statement that “we see little likelihood that an inmate facing a serious risk of pain will be unable to identify an available alternative.”

The most charitable read here is that Justice Brett is putting the onus on death row lawyers, with their loads of leisure time and resources, to come up with less painful methods of execution, should their clients so wish. If that reminds you of a torturer asking a victim which part they’d like hacked off, it should.

Again, that’s the charitable read. The uncharitable read is that Kavanaugh is bemused by all these death row appellants challenging the humanity of lethal injection and is actively shopping for states to bring back firing squads in hopes that the condemned stop bitching.

As I said, this opinion is evil. Our Constitution is so much better than the men allowed to speak for it. May God have more mercy on this damned country than this country has for its damned.


Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.

Elie Mystal

Elie Mystal joined ATL in 2008 by winning the ATL Idol Contest. Prior to joining ATL, Elie wrote about politics and popular culture at City Hall News and the New York Press. Elie received a degree in Government from Harvard University and a J.D. from Harvard Law School. He was formerly a litigator at Debevoise & Plimpton but quit the legal profession to pursue a career as an online provocateur. He's written editorials for the New York Daily News and the New York Times, and he has appeared on both MSNBC and Fox News without having to lie about his politics to either news organization.

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