Since the court decided Baze v Rees in 2008, successive cases have cladded that plurality opinion with additional authority. Building on the 2015 decision in Glossip v Gross, on Monday the court in Bucklew v Precythe once again took the opportunity to reaffirm Baze. However, Justice Neil Gorsuch’s majority opinion is noteworthy because it does not just fortify the plurality test in Baze: it cleverly remasters it.
The most interesting aspect about the Bucklew decision is the way it engages with Baze v Rees. That case involved a challenge to Kentucky’s three-drug execution protocol. The important point about the opinion, of course, is that it only gained the votes of three Justices – the Chief Justice, Justice Alito and Justice Kennedy. Further, it was that plurality opinion that devised the test at the centre of Bucklew’s case. Put simply, the test requires challengers to methods of execution to make two showings: a) that the method presents a “substantial” or “objectively intolerable” risk of serious harm and b} there is alternative method that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.
However, as Gorsuch’s opinion in Bucklew underscores [p.3 of the slip opinion], two Justices in Baze adopted a very different test. Gorsuch explains: “Justice Thomas, joined by Justice Scalia, thought the [Kentucky] protocol passed muster because it was not intended “to add elements of terror, pain, or disgrace to the death penalty.” At the get-go, this is an originalist formulation, because its method of comparison focuses on the kind of gruesome, inhuman and barbarous methods that ‘super-added’ pain to executions and were popular in Tudor England. In a nutshell, when originalists compare modern methods with, say disembowelling for instance, they will usually find the former unobjectionable.
Holding out these two different approaches, Gorsuch gets creative. Indeed, any close reading of the Bucklew opinion reveals how he fuses the plurality test in Baze with Thomas and Scalia’s originalist-leaning language in their separate concurrence.
A cursory survey of the three relevant opinions demonstrates this. In Baze v Rees, the ‘super-adding’ language did not feature prominently at all. Indeed, it is only mentioned twice in a short section of the opinion where the court makes the point that the ‘State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment’ has never been invalidated because American methods of execution have not ‘super-ad[ded] pain to the death sentence through torture and the like.’ The plurality was happy to make this brief nod to the originalists (citing Wilkerson v. Utah, an 1879 case which rejected the argument that death by firing squad was cruel and unusual), but then swiftly moved on. The ‘super-adding’ language played no role in the rest of the Baze plurality’s opinion.
That this snippet in Baze was really a shallow curtsey to originalism is clear from Glossip v Gross, which approved the use of midazolam in Oklahoma’s execution protocol. Alito, the author of the majority opinion in Glossip (who joined the plurality in Baze), did not adopt the ‘super-adding’ language once, even when discussing Wilkerson and other historic cases.
Not so with Bucklew. Indeed, Gorsuch has gone out of his way to import the super-adding language into the Baze plurality’s test. Examples are plentiful:
[Baze] teaches that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain
Distinguishing between constitutionally permissible and impermissible degrees of pain, Baze and Glossip explained, is a necessarily comparative exercise. To decide whether the State has cruelly “superadded” pain to the punishment of death isn’t something that can be accomplished by examining the State’s proposed method in a vacuum, but only by “compar[ing]” that method with a viable alternative.
As we’ve seen, when it comes to determining whether a punishment is unconstitutionally cruel because of the pain involved, the law has always asked whether the punishment “superadds” pain well beyond what’s needed to effectuate a death sentence.
What is Gorsuch’s goal here? To be sure, the uncontroversial interpretation of Bucklew is that it simply re-girds Baze, which is once again protected with a five-member majority. However, Gorsuch is an avowed originalist, and it is clear from Bucklew that he’s sowing originalism into the analysis every chance he can get. Given that Gorsuch announces early on that his hermeneutic will be to ‘first examine the original and historical understanding of the Eighth Amendment and our precedent in Baze and Glossip’ (p.8), the fusion of the plurality’s and the Thomas-Scalia language is no accident.
But with fusion comes a little confusion. Gorsuch’s opinion seems to suggest that the original Baze test [that is, the language of the test shorn of all this super-adding stuff] still exists. On p.14 of the opinion, Gorsuch has to remind himself that there were two distinct approaches in Baze:
As we’ve seen, two Members of the Court whose votes were essential to the judgment in Glossip argued that establishing cruelty consistent with the Eighth Amendment’s original meaning demands slightly more than the majority opinion there (or the Baze plurality opinion it followed) suggested.
Undoubtedly, Gorsuch prefers the Thomas-Scalia phraseology. But later on in the paragraph, Gorsuch still concedes that there is the ‘more forgiving Baze-Glossip test’ exemplified in the plurality. Do we have two approaches or one then? Well, as Gorsuch has embedded the ‘super-adding’ language literally everywhere into Bucklew, it’s hard to see how lower courts can begin disentangling either henceforth.
And so, interesting questions abound. Because Gorsuch has persuaded the other conservatives (especially Roberts and Alito) to sign onto his language, does Bucklew signal a newly invigorated role for originalism in Eighth Amendment interpretation? Time will tell. Further, where does the Bucklew opinion leave Trop v Dulles?Trop was a 1958 case that insisted on an interpretation of the Eighth amendment in harmony with ‘the evolving standards of decency that mark the progress of a maturing society.’ You can imagine what the originalists think of that coinage. In Glossip, Justice Scalia said that Trop had ‘caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind.’ He also wondered whether ‘our cases that have abandoned the historical understanding of the Eighth Amendment, beginning with Trop, should be overruled.’ Jurists with that longer-term goal in mind might take great comfort from Gorsuch’s opinion (Indeed, Gorsuch clearly can’t be bothered with Trop and it is only cited in Breyer’s dissenting opinion, at p.5).
Finally, two further points.
The first is the price of Justice Brett Kavanaugh’s vote. At oral argument, Kavanaugh seemed a jot more concerned with Bucklew’s fate than the other conservatives. Indeed, Amy Howe observed that he was perhaps Bucklew’s ‘best hope’ of a fifth-vote. In the midst of its super-adding symphony, however, the court slightly softens its severity (at p.19 of the slip opinion), stating that ‘the burden Mr. Bucklew must shoulder under the Baze-Glossip test can be overstated.’ Here, the court hands a little life raft to challengers of execution methods, explaining that ‘[a]n inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State’s law.’ Given that Kavanaugh repeats this instruction (and only this instruction) in his separate concurrence, it is plausible that this paragraph was the fee paid for Kavanaugh’s vote.
The second is the court’s emphasis on its own modest role in the death penalty debate. The role of the ‘People’ is unmistakably one of Gorsuch’s favourite constitutional themes. In his very first opinion for the Court, Gorsuch trumpeted how it was the ‘role of the judiciary…to apply, not amend, the work of the People’s representatives.’ In considering the death penalty, Gorsuch writes that ‘the judiciary bears no license to end a debate reserved for the people and their representatives ‘(p.9) and later repeats, ‘[u]nder our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve’ (29). In her Bucklew dissent, Justice Sotomayor labels a lot of this end-matter ‘troubling dicta’ but it certainly stands as a word of caution, and perhaps an auguring of disappointments to come, for those hoping that the end of the death penalty in America would be through judicial enterprise.