Last Call For Another Supreme Disappointment

The US Supreme Court handed down yet another 5-4 decision today that essentially destroys 50 years of progress on stopping the death penalty under the Eighth Amendment's "cruel and unusual punishment" clause as according to Judge Neil Gorsuch and the other four conservatives, states can essentially execute people in whatever fashion they want.

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.

Oh, but it gets worse.

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 ruling puts the burden of finding a more humane method of execution on the death row inmate, and unless it meets the stringent test of being easy and quick for the state to carry out, which the state gets to solely determine, then the state can reject it and use whatever method it wants to.

And please remember, all of the other conservatives signed off on this monstrous ruling, including Mr. Ball-And-Strikes Chief Justice Roberts himself.  Hell is empty and at least five of the devils are on the bench.