The Supreme Court’s opinion in Bucklew v. Precythe, which it handed down Monday on a party-line vote, is at once the most significant Eighth Amendment decision of the last several decades and the cruelest in at least as much time.
Neil Gorsuch’s majority opinion tosses out a basic assumption that animated the Court’s understanding of what constitutes a “cruel and unusual” punishment for more than half a century. In the process, he writes that the state of Missouri may effectively torture a man to death — so long as it does not gratuitously inflict pain for the sheer purpose of inflicting pain.
And, on top of all of that, Gorsuch would conscript death penalty defense attorneys — men and women who often gave up lucrative legal careers to protect the lives of their clients — into the ghoulish task of laying out the method that will be used to kill those clients.
It’s a breathtaking sign of just how much the Supreme Court’s new majority is willing to change — and how quickly they are willing to impose that change on the rest of us.
Looming beneath the surface, moreover, is an even more ominous sign for anyone who hopes that this Supreme Court will not replace decades of established law with the Federalist Society’s wildest fantasies. In several recent oral arguments, Trump appointee Brett Kavanaugh appeared unexpectedly sympathetic to liberal litigants.
Bucklew was one of these cases, where Kavanaugh browbeated a lawyer defending Missouri’s plans to potentially inflict tremendous pain during an upcoming execution. “Are you saying even if the method creates gruesome and brutal pain you can still do it because there’s no alternative?” the newest member of the court asked at one point.
And yet, Kavanaugh did not simply join Gorsuch’s opinion, he wrote a separate opinion suggesting that maybe death row inmates could be executed by firing squad.
Monday’s decision in Bucklew, in other words, is not just a sweeping rewrite of one of the Bill of Rights’ core provisions. It may prove to be a very real window into the mind of Kavanaugh — and it suggests that, whatever noises Kavanaugh makes during a hearing, he will ultimately be a reliable vote for whatever outcome the Court’s conservative bloc prefers.
The Bucklew case involves Russell Bucklew, a man who committed a brutal murder in 1996 and was sentenced to die. Bucklew also has cavernous hemangioma, a disease “which causes vascular tumors—clumps of blood vessels—to grow in his head, neck, and throat.”
Missouri plans to execute Mr. Bucklew by giving him a lethal dose of the barbiturate pentobarbital, but Bucklew fears that this drug would lead him to effectively choke on his own tumors, causing him extreme pain and suffering in his final minutes.
Kavanaugh did not simply join Gorsuch’s opinion, he wrote a separate opinion suggesting that maybe death row inmates could be executed by firing squad.
Bucklew lost any realistic chance of prevailing in 2015, when a 5-4 Supreme Court handed down its decision in Glossip v. Gross. That decision held that the death penalty enjoys a kind of super-legal status that protects it even from private citizens who refuse to be complicit in executions.
Glossip arose after manufacturers of drugs commonly used in executions refused to sell those drugs to states that wished to use them to kill someone. As a result, many states turned to painkillers of questionable reliability which, in Justice Elena Kagan’s words, left death row inmates with “the feeling of being burned alive.” The inmates behind Glossip alleged that such a torturous death amounted to cruel and unusual punishment.
This argument, however, garnered no sympathy from the Supreme Court’s conservative majority. Justice Samuel Alito, who wrote the Glossip opinion, dismissed the drug companies’ refusal to be complicit in executions as a “guerrilla war against the death penalty.” His opinion held that “because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’” And thus the mere fact that an inmate would experience excruciating pain during his execution was not enough to prevent that execution.
The burden, instead, fell upon the inmate to propose a different method of execution that would be less painful. Thus, death row inmates and their lawyers were conscripted into the task of determining how they would be killed — and failure to do so could be punished with torture.
Much of Gorsuch’s opinion in Bucklew fleshes out the burden these inmates face, often in gruesome detail. Bucklew’s proposed alternative method of execution — asphyxiation by nitrogen gas — is insufficient, according to the opinion.
[Bucklew] presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.
Death row inmates must not only tell the courts how they wish to be killed, they must offer a proposal that is “sufficiently detailed to permit a finding that the State could carry it out ‘relatively easily and reasonably quickly.’”
Rewriting the Eight Amendment
Beyond the macabre facts of the Bucklew case, Gorsuch’s opinion also undercuts decades of Eighth Amendment law, potentially permitting states to revive punishments that fell out of favor 200 years ago.
Recall that the Constitution prohibits “cruel and unusual” punishments. The word “unusual” implies that, as a particular punishment becomes less and less common, it stands on weaker constitutional footing. Thus, as Chief Justice Earl Warren explained in a 1958 opinion, the Eight Amendment prohibits punishments that defy “evolving standards of decency that mark the progress of a maturing society.”
This evolving standards test, however, presents a significant problem for supporters of the death penalty. The number of death sentences in the United States collapsed over the last two decades, strongly suggesting that executions themselves defy evolving standards of decency that mark the progress of a maturing society.
In total, only 25 people were executed in the United States in 2018, and only eight states performed any executions at all. One state, Texas, accounted for more than half (13) of these executions.
Yet, rather than accept the implication of this trend for the constitutionality of the death penalty, Gorsuch responds by changing the rules.
One of the weaknesses of the Glossip opinion is that it is heavy on bold claims that the death penalty must be allowed under the Constitution, but light on an theoretical framework justifying this claim. Gorsuch’s Bucklew opinion tries to provide this framework.
The Constitution allows capital punishment. In fact, death was “the standard penalty for all serious crimes” at the time of the founding. Nor did the later addition of the Eighth Amendment outlaw the practice. On the contrary—the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a “capital” crime and “deprived of life” as a penalty, so long as proper procedures are followed.
Gorsuch then surveys the kinds of punishments that would have been forbidden at the time of the framing. “These included such ‘[d]isgusting’ practices as dragging the prisoner to the place of execution, disemboweling, quartering, public dissection, and burning alive, all of which Blackstone observed ‘savor[ed] of torture or cruelty.'” He adds that “by the time of the founding, these methods had long fallen out of use and so had become ‘unusual.’”
Notice what Gorsuch just did there. He neither mentions evolving standards nor concedes the relevance of anything that has transpired in the last 200 years. He also redefines the word “unusual” to mean punishments that “had long fallen out of use” at “the time of the founding,” not punishments that are uncommon today.
That’s a simply breathtaking shift in the court’s understanding of the Eighth Amendment which, without admitting that it’s doing so, overrules decades of established law. Among other things, the Supreme Court relied on the “evolving standards of decency” test in its decisions forbidding the execution of the intellectual disabled and of juvenile offenders. Those decisions, among many others, are now in jeopardy.
To add insult to injury, Gorsuch also takes several swipes at Bucklew’s arguments and the arguments raised by the dissent, claiming that “his suit in the end amounts to little more than an attack on settled precedent” — the precedent established in Glossip. Gorsuch isn’t wrong that it’s tough to square Bucklew’s arguments with the bloodthirsty opinion Alito handed down in Glossip. But he hardly has standing to criticize anyone for disrespecting precedent.
Bucklew literally tears out the heart of more than a half-century worth of Eighth Amendment precedents, and replaces it with a very different legal rule that, until recently, was rejected by all but the Supreme Court’s most hardline conservatives.
And Bucklew could represent far more than a turning point in the Supreme Court’s understanding of just one amendment. Kavanaugh’s crocodile tears during oral argument suggest that there is little hope that he will prove to be a moderating force on the Supreme Court. And the majority’s willingness to cast aside one of the most firmly established assumptions of constitutional law so casually suggests that they will do it again.
Bucklew v. Precythe is a revolutionary opinion, and it likely portends an even greater revolution.