by Michael Avery

If you want to know what it will be like having five Justices on the Supreme Court who are Federalist Society members, read the Court’s April 1 decision in Bucklew v. Precythe, 139 S.Ct. 1112. The five conservative Justices, in an opinion by the Trump appointee Neil Gorsuch, rejected convicted murderer Russell Bucklew’s death row claim that executing him with pentobarbital would constitute cruel and unusual punishment in violation of the Eighth Amendment. Bucklew argued that while pentobarbital might be acceptable in most cases, he suffers from a rare disease, cavernous hemangioma, which causes vascular tumors that would slow the effect of the pentobarbital and bring about several minutes of painful suffocation before he lost consciousness and died. The Court said too bad—no one is guaranteed a painless death.

As terrible as this result will be for Mr. Bucklew, the opinion will cause even more damage to American constitutional law. The Court analyzed what constitutes cruel and unusual punishment pursuant to the so-called “original meaning” school of interpretation, which holds that the Eighth Amendment should mean the same thing today that it did when it was adopted in 1791. To discern that meaning, Gorsuch looked to Samuel Johnson’s and Noah Webster’s dictionaries from 1773 and 1828, as well as Blackstone’s Commentaries on the Laws of England from 1769. By those lights, “cruel and unusual” means punishments that are “tortures” and “barbarous,” where “terror, pain or disgrace [were] superadded” to the penalty of death. 

To determine whether the proposed execution by pentobarbital of Bucklew would be cruel and unusual, Gorsuch employed a test invented by the Court by three Justices in 2008 and adopted by a majority in 2015. Under that test, a method of execution is cruel and unusual only when the prisoner himself can prove that there is “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” Unless the prisoner can prove that, there is no “superadding” and no constitutional violation. There is nothing in the Eighth Amendment or in the old dictionaries cited by Gorsuch that puts that burden on the death row prisoner. Despite the fanfare with which the Federalists trumpet their “originalist” philosophy, they, like all lawyers and judges, have to engage in interpretation and construction when writing constitutional law. Gorsuch’s opinion strives to look like originalism, but is actually twenty-first century conservatism delivered in a more attractive rhetorical package. 

What is so ominous about this decision is the conservative Justices’ stated resolve to make their version of originalism stick. They threw down a rhetorical gauntlet. Gorsuch chastised the dissenting Justices not merely for disagreeing with his conclusions, but for failing “to grapple with the understanding of the Constitution on which our precedents rest.” In other words, for failing to make their dissenting arguments based on the originalist school of interpretation. In the coming years, we will see over and over again that rejection of the schools of constitutional interpretation that have prevailed for the last eighty years. Pursuant to “originalism,” the new Federalist majority will restrict personal liberties, increase protection for property interests, strike down legislation and regulation designed to protect consumers, workers, and the environment, restrict access to the courts for redress against the government, and promote narrowly defined national interests at the expense of international commitments. The victims of the new Supreme Court will not primarily be convicted murderers, but the vast majority of our people. 

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Michael Avery is Professor Emeritus at Suffolk Law School in Boston. He began practicing law in 1970 and specialized in civil rights, police misconduct, and criminal defense. 

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