by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Supreme Court voted in a 5-4 decision Monday to reject the appeal of a man claiming that Missouri’s lethal injection protocol would cause him, particularly, to die in an unconstitutionally painful way.
Writing for the majority of the court, Justice Neil Gorsuch authored an opinion that not only rejected the plaintiff’s argument, but sharply rebuked abuse of the death penalty appeals process by opponents of capital punishment. …
… Gorsuch makes another, vital step: he incorporates an originalist standard for the Eighth Amendment—articulated by Justices Thomas and Scalia in separate concurrences to Baze—into the Baze test. Specifically, he argues that “cruel and unusual punishment,” in the founders’ dialect, refers only to those punishments which “superadd” terror, pain, or disgrace, a popular practice of pre-Enlightenment monarchs carrying out executions.
In so doing, legal blogger Sean A. Smith notes, Gorsuch seems to assert a standard which runs contrary to the prevailing approach since the 1950s of interpreting “cruel and unusual punishment” in line with the “evolving standards of decency” of society. This finding seems to have alarmed dissent author Justice Stephen Breyer, who asserts, “we have repeatedly held that the Eighth Amendment is not a static prohibition that proscribes the same things that it proscribed in the 18th century. Rather, it forbids punishments that would be considered cruel and unusual today.”