CASES DEALING with methods of execution produce the grisliest Supreme Court decisions. Wilkerson v Utah, the first such case probing the limits of the Eighth Amendment’s bar on “cruel and unusual punishments”, held that while being “embowelled alive, beheaded and quartered” are unconstitutional, firing squads are allowable. That was in 1879. In 2008, lethal injection was deemed acceptable in Baze v Rees. In a wrinkle on Baze in 2015, the Supreme Court rejected an inmate’s claim that a drug in Oklahoma’s lethal-injection cocktail entailed a risk of extreme and extended suffering. Everyone may “wish to die a painless death”, Justice Samuel Alito wrote in Glossip v Gross, but “many do not have that good fortune”. Letting inmates escape the death penalty just because their execution method may entail a risk of severe pain “would effectively outlaw the death penalty altogether”.

With this rather fresh precedent on the books, the result in Bucklew v Precythe, a case decided by a 5-4 vote on April 1st, is perhaps not surprising. But the hard-hearted tone of the majority opinion is nonetheless shocking. Russell Bucklew was sent to Missouri’s death row in 1996 after threatening and raping his ex-girlfriend, shooting at her son and killing the man who gave them refuge. Like most states that still practice capital punishment, Missouri puts its worst criminals to death with lethal injection. But Mr Bucklew has a rare medical condition that could make such an execution extremely painful. In the words of Justice Neil Gorsuch, author of the majority opinion, Mr Bucklew’s cavernous hemangioma causes tumours comprised of “clumps of blood vessels” to grow in his head, neck and throat. The tumours are easily pricked and often bleed. During lethal injection, Mr Bucklew’s doctors say, the tumours would probably rupture and flood his airway, suffocating him for minutes. That, his lawyers argue, amounts to cruel and unusual punishment.

In Justice Gorsuch’s opinion, Mr Bucklew finds little sympathy. A drug that may have decreased the risk of a botched execution, Justice Gorsuch wrote, is unavailable due to “pressure from anti-death penalty advocates”. But that is beside the point, because the Eighth Amendment prohibits only punishments that add “terror, pain or disgrace” on top of the mechanics of ending a criminal’s life. Even hanging, Justice Gorsuch wrote, is perfectly constitutional despite being “no guarantee of a quick and painless death”. So, picking up on Glossip, Justice Gorsuch reminds us that the Eighth Amendment does not promise “a prisoner a painless death”. That is something, he added, that victims of capital crimes seldom receive. Mr Bucklew’s requested exemption from lethal injection is not only out of bounds. His constitutional claim is a “headlong attack on precedent”.

Portraying the Supreme Court as the victim of a condemned man with an awful medical malady is a questionable move. But from there, Justice Gorsuch erected an even more formidable barrier for inmates seeking vindication of their Eighth Amendment rights. In line with Glossip’s requirement that people on death row name another workable execution method that would incur less pain, Mr Bucklew said it would be better if he were put to death using nitrogen gas. Such a death would be “quick and painless” and would not burst Mr Bucklew’s tumours. That is not sufficient, Justice Gorsuch replied. There is not enough evidence nitrogen would work any better. And the inmate needs to show both that the alternative could be “readily implemented” and that the state has no good reason to resist it. But Missouri has never used nitrogen gas, Justice Gorsuch wrote, and Mr Bucklew has specified neither the concentration of gas, how long it would flow nor how the state “might ensure the safety of the execution team”.

For Justice Stephen Breyer, whose dissent was joined in large part by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, faulting Mr Bucklew “for failing to provide guidance about the administration of nitrogen hypoxia down to the last detail” imposes a novel requirement that “today’s majority invents”. It amounts to an “insurmountable hurdle” for prisoners seeking to challenge their execution methods. And the majority’s callous indifference to the suffering of condemned prisoners means states will be empowered to “execute even those who will endure the most serious pain and suffering, irrespective of how exceptional their case” and “how thoroughly they prove it”.

In her own eloquent dissent, Justice Sotomayor took issue with a passage in the majority opinion rife with evidence of the majority’s disdain for death-row inmates who turn to the courts to avert their executions. The judiciary, Justice Gorsuch wrote, should not stand in the way of states seeking to execute their worst. Instead, courts should “police carefully against attempts to use such challenges as tools to interpose unjustified delay” in death sentences. “Last-minute stays”, he continued, “should be the extreme exception, not the norm”. For Justice Sotomayor, this is backwards. There is “nothing unusual” or “untoward”, she wrote, “about parties pressing, and courts giving full consideration to” constitutional challenges, whether or not they succeed. If an execution results in the torture of a man with a medical condition, “that stain can never come out”. When a life is on the line, judges should be vigilant, not dismissive.

On March 20th 2018, Justice Anthony Kennedy was still on the bench when Mr Bucklew requested a temporary delay in his execution. Justice Kennedy joined the liberal justices in granting that request, with the four other conservative justices in dissent. Mr Bucklew may ultimately have lost his case at the Supreme Court even if Justice Kennedy had spent another year in his seat: he was in the majority, after all, in both Baze and Glossip. But given Justice Kennedy’s votes exempting juveniles and people with intellectual disabilities from the death penalty there is a chance Bucklew could have gone the other way. Even if not, it seems unlikely that Justice Kennedy's would have added his signature to an opinion silently bypassing the court's "evolving standards of decency" approach to defining the requirements of the Eighth Amendment, a measure the justices have used since 1952. And Justice Kennedy's concern with the dignity of the individual, obvious in his jurisprudence, may have kept him from joining a ruling so contemptuous of a person facing the prospect of a torturous ordeal at the hands of the state. As Justice Sotomayor wrote, “there are higher values than ensuring that executions run on time”.