Supreme Court Draws, Quarters The Eighth Amendment

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Supreme Court Draws, Quarters The Eighth Amendment
The most disturbing and grotesque of originalist fantasies is now law.
By ELIE MYSTAL
Apr 1, 2019 at 4:45 PM

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.
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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at [e-mail]. He will resist.