,
6 tweets,
2 min read
Read on Twitter
#SCOTUS's 5-4 ruling in Bucklew, rejecting a prisoner's claim that his execution by lethal injection will violate the Eighth Amendment because of the pain it will inflict on him (due to his medical condition), may, in retrospect, be the true beginning of the "post-Kennedy" Court.
It's not the first 5-4 ruling in a merits case in which the new conservative majority prevailed (that came in the immigration detention case, Nielsen v. Preap).
Nor am I confident that Justice Kennedy would've voted differently here, given his previous votes in Glossip and Baze.
Nor am I confident that Justice Kennedy would've voted differently here, given his previous votes in Glossip and Baze.
But there are three features of Justice Gorsuch's majority opinion that I doubt Justice Kennedy would have endorsed:
First, the majority's refusal to note (let alone distinguish) the Court's "evolving standards of decency" approach to identifying "cruel and unusual punishment."
First, the majority's refusal to note (let alone distinguish) the Court's "evolving standards of decency" approach to identifying "cruel and unusual punishment."
Second, the majority's complaints about the eleventh-hour nature of most challenges to execution methods, which were almost entirely gratuitous given that no one was arguing that allegedly unreasonable delay by the prisoner was an issue in this case.
Third, the sniping between the majority and the dissenters over the fallout from the February order in the Alabama death penalty case—a deeply unusual example of clear behind-the-scenes fighting in one case showing up in a published opinion in another.
For all of his (many) flaws, Justice Kennedy was, by dint of both his views and their median position among the Justices, a moderating influence on the rest of the Court. Some may think the absence of that influence is a feature, not a bug. Today, at least, I'm not so sure.
/end
/end
