In Bucklew, Gorsuch Offers Powerful Support to Death Penalty

Case shows emerging tensions over capital punishment at SCOTUS

Justice Neil M. Gorsuch
Justice Neil M. Gorsuch / Getty Images
April 2, 2019

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.

The man at the center of the case is Russell Bucklew, convicted more than 20 years ago for the rape of his ex-girlfriend and the murder of her new boyfriend. Bucklew suffers from cavernous hemangioma, a rare disease which has filled his head, neck, and throat with unstable, blood-filled tumors.

After exhausting other appeals available to him, five years ago Bucklew brought an "as-applied" challenge, arguing that the state of Missouri's intended method of execution, injection with pentobarbital, might cause one or more of these tumors to burst. This could in turn cause him to asphyxiate blood and thereby suffer a needlessly cruel death in violation of the constitution's prohibition on cruel and unusual punishment.

Oral arguments in Bucklew last November were seen at the time as a bellwether for the future direction of the court's capital jurisprudence. They were the first death penalty cases heard by newly minted justice Brett Kavanaugh, whose predecessor on the court, Anthony Kennedy, was often sympathetic to the claims of death row inmates.

But the decision issued Monday is as much about the continuation of the recent past as the future. The majority opinion, authored by Gorsuch and joined by the court's other four conservatives, extends work done previously in 2008's Baze v. Rees and 2015's Glossip v. Gross on what qualifies a method of execution as unconstitutionally cruel and unusual.

In Baze, Kentucky death row inmates argued that the state's lethal injection protocol exposed them to a risk of intolerable harm. A three-justice plurality concluded that it did not, and outlined a test which required those seeking to challenge a method of execution to offer a feasible, readily implementable alternative.

Glossip extended that justification in a majority holding, insisting that "because capital punishment is constitutional, there must be a constitutional means of carrying it out." In other words, a method of execution could not contravene the Eighth Amendment unless it was needlessly cruel, where needlessness is partially defined in relation to available alternatives.

In Bucklew, Gorsuch's majority opinion further clarifies this test by making clear that it should be used in "as-applied" challenges; the court further finds that Bucklew's attempt to pass the test fails (although the four-justice minority disagreed).

But 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."

This back-and-forth over how far the Eighth Amendment can be stretched may indicate a conservative wing of the Court fed up with what it perceives as spurious delays and challenges that lead to the twenty-plus years it took to prosecute Bucklew's. Gorsuch in passing cites the court's recent decision to refuse to compel the state of Alabama to provide a Muslim man with an Imam in his execution chamber, calling the convict's late delay an "abuse of discretion."

"Both the State and the victims of crime have an important interest in the timely enforcement of a sentence.' Those interests have been frustrated in [the Bucklew] case," Gorsuch writes. "Even the principal dissent acknowledges that 'the long delays that now typically occur between the time an offender is sentenced to death and his execution' are 'excessive.' The answer is not, as the dissent incongruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat."

Gorsuch also goes out of his way to emphasize multiple times that, "under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve"—in other words, that the Supreme Court is institutionally powerless to abolish the death penalty itself. Writing on the Bucklew ruling, death penalty expert Kent Scheidigger called Gorsuch's statements, "the strongest statement of the unquestionable constitutionality of capital punishment that I have ever seen in an opinion of the Court, rather than in a concurring or dissenting opinion."

In other words, Bucklew is significant not merely as a technical question, but as a series of broadsides against efforts to judicially abolish the death penalty. The court has in fact done so once before, establishing a four-year moratorium in 1972. Today, death penalty opponents have sought to do so again, and to create the conditions by which the court is able to conclude that capital punishment contravenes "evolving standards of decency."

This may be why, in the conclusion of his dissent, Justice Breyer—unjoined in that section by any of his colleagues—went out of his way to contend that it may still yet be possible to abolish the death penalty through a procedural "backdoor."

"It may be that there is no way to execute a prisoner quickly while affording him the protections that our Constitution guarantees to those who have been singled out for our law's most severe sanction," Breyer wrote. "And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty."