by Michael C. Dorf





Bucklew v. Precythe, the SCOTUS rejected an Eighth Amendment claim by a condemned Missouri man who argued that although the state's execution protocol was not cruel in general, it would be cruel as applied to him, because vascular tumors in his head, neck, and throat could hemorrhage or rupture during the execution, leading to "prolonged" excruciating pain. Writing for the 5-4 majority, Justice Gorsuch sounded three main themes. On Monday, in, the SCOTUS rejected an Eighth Amendment claim by a condemned Missouri man who argued that although the state's execution protocol was not cruel in general, it would be cruel as applied to him, because vascular tumors in his head, neck, and throat could hemorrhage or rupture during the execution, leading to "prolonged" excruciating pain. Writing for the 5-4 majority, Justice Gorsuch sounded three main themes.





(1) Throughout the opinion, Gorsuch all but accuses petitioner Bucklew and his attorneys of bad faith. Although Bucklew committed his crimes in 1996 and exhausted his direct appeals and habeas challenges "more than a decade ago," the opinion states, "since then he has managed to secure delay through lawsuit after lawsuit." Given the very substantial skepticism with which the majority views Bucklew's entire case and death penalty litigation more broadly, it is probably not surprising that other aspects of the opinion (which I discuss after the jump) are less than fully persuasive. The Roberts Court views cases challenging methods of execution as a means of circumventing doctrines that generally permit the death penalty, and so will do whatever it can to knock down such challenges.

Trop v. Dulles (1958) and Atkins v. Virginia (2002), Justice Kennedy wrote the majority opinion in in which he said that whether a penalty is valid (2) The majority sees no problem in essentially ignoring what has long been the framework for evaluating Eighth Amendment claims. For over six decades, the Court has embraced a dynamic conception of the Clause. Consider a typical example. Quoting(1958) and(2002), Justice Kennedy wrote the majority opinion in Kennedy v. Louisiana (2008),in which he said that whether a penalty is valid

is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that “currently prevail.” The Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”

And yet, without so much as mentioning Trop or the evolving standards test, Justice Gorsuch simply equates the Eighth Amendment with its original meaning in 1791.





Trop test to originalism does any work in Bucklew. Justice Gorsuch says that the original meaning of a "cruel" execution is either one that is deliberately accompanied by excessive pain (as Justice Thomas would have it) or excessively painful (whether intentionally or not). One could derive the latter version of that principle from the Trop test itself. If one assumes that our society has not yet matured to the point where it categorically rejects the death penalty, one might say further that we have matured at least to the point where we want executions to be carried out with as little extra suffering as possible. And indeed, Gorsuch adopts that view, at least arguendo, as a matter of the Eighth Amendment's original meaning, relying principally on the Chief Justice's plurality opinion in Baze v. Rees, which also did not cite or quote any "evolving standards" language. To be sure, it's not clear that the shift from thetest to originalism does any work in. Justice Gorsuch says that the original meaning of a "cruel" execution is either one that is deliberately accompanied by excessive pain (as Justice Thomas would have it) or excessively painful (whether intentionally or not). Onederive the latter version of that principle from thetest itself. If one assumes that our society has not yet matured to the point where it categorically rejects the death penalty, one might say further that we have matured at least to the point where we want executions to be carried out with as little extra suffering as possible. And indeed, Gorsuch adopts that view, at least, as a matter of the Eighth Amendment's original meaning, relying principally on the Chief Justice's plurality opinion in, which also did not cite or quote any "evolving standards" language.





Why, then, do I make a fuss about the failure to cite or quote the "evolving standards" language? Because we have seen this movie before. First, in a case in which it doesn't matter to the outcome, the Court shifts doctrinal ground. Then it follows through on the shift in a case in which the different approach determines the outcome. Accordingly, be forewarned: There is a substantial likelihood that in some future Eighth Amendment case, the Court will overrule one or more precedents disallowing the death penalty or some other punishment on the ground that those precedents are not rooted in the original understanding.





(3) Meanwhile, the substantive merits of the opinion address two questions: (a) Was Bucklew obligated to propose a "feasible and readily available" alternative method of execution that would pose a substantially reduced risk of suffering? (b) If so, was the one he eventually proposed -- death by nitrogen hypoxia -- feasible and readily available? The majority said (a) yes, he had that obligation, but (b) his proposal did not satisfy it. Here I want to focus on the majority's reasoning in answering (a).





Bucklew distinguished between two sorts of claims that a punishment is cruel. A punishment could be cruel in an absolute sense or in a relative sense. Bucklew gave three examples of the former sort: death by burning at the stake, by crucifixion, and by breaking on the wheel. Likewise, he argued, the sort of death he would endure if subject to the state's protocol was absolutely forbidden, without regard to any alternative. Justice Gorsuch said that this argument was foreclosed by Baze, which requires comparison with alternatives for all method-of-execution claims.





Bucklew and the dissenters responded that the requirement of an alternative ensures that a method-of-execution claim does not become a backdoor means of attacking the death penalty itself but that this concern is not present in an as-applied rather than a facial challenge. In response, Justice Gorsuch said that

classifying a lawsuit as facial or as-applied affects the extent to which the invalidity of the challenged law must be demonstrated and the corresponding “breadth of the remedy,” but it does not speak at all to the substantive rule of law necessary to establish a constitutional violation. Surely it would be strange for the same words of the Constitution to bear entirely different meanings depending only on how broad a remedy the plaintiff chooses to seek. [Citations omitted].

Wait, what? Why do Justice Gorsuch and the majority think that the meaning of the Eighth Amendment is different if it requires different things in different contexts? And did they correctly characterize the difference between as-applied and facial challenges?