The U.S. Supreme Court’s website speak these words about the Court’s commitment to “justice”:
“‘EQUAL JUSTICE UNDER LAW’- These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.”
These justice goals were not reflected in a trilogy of cases handed down during the first four months of 2019.
No Freedom of Religion During Execution
In an ideological 5-4 split decision in February, the Court refused to stay the execution of an Alabama death row inmate named Dominique Ray. A Muslim by faith, Ray argued that his First Amendment right to freedom of religion was violated by Alabama prison officials when they denied the inmate’s request to have an Iman present during his execution. Ray said the First Amendment was implicated because prison officials routinely permit a state-employed Christian chaplain to be present during executions.
Writing for the dissent, Justice Elena Kagan—who was joined by Justices Ginsburg, Breyer and Sotomayer—wrote that “given the gravity of the issue presented here, I think [the majority’s] decision profoundly wrong.”
“The clearest command of the Establishment Clause,” she continued, “is that one religious denomination cannot be officially preferred over another.”
Dominique Ray was executed on February 7.
Last month the Court chartered a completely different course through the “freedom of religion” seas.
Christian or Muslim Only
This time Patrick Dale Murphy, the last surviving member of the infamous “Texas Seven” group, argued that the decision by Texas prison officials not to allow him to have a Buddhist spiritual adviser at his side during his scheduled execution violated his First Amendment rights because prison policy permits Texas death row inmates to have either a state-employed Christian or Muslim religious adviser present during an execution.
“In this case, the relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent room. But inmates of other religious denominations—for example, Buddhist inmates such as Murphy—who want their religious adviser to be present can have the religious adviser only in the viewing room and not in the execution room itself for their executions.”
Kavanaugh added: “In my view, the Constitution prohibits such denominational discrimination.”
Chief Justice Roberts and Justice Alito joined Justice Kavanaugh in the Murphy decision.
Patrick Dale Murphy was returned to death row where he awaits a new execution date.
SCOTUS Legalizes Torture
And, then, on April 1, 2019, the Supreme Court, led by Justices Gorsuch and Thomas, both of whom swore an allegiance to Supreme Court precedent during their confirmation hearings, turned their backs on two court precedents dealing with the reach of the Eighth Amendment’s prohibition against cruel and unusual punishment.
In the two opening paragraphs of his article “Supreme Court’s Conservatives Just Legalized Torture” in Slate, Mark Joseph Stern crystallized the Court’s recent decision in Bucklew v. Precythe:
“… five justices of the Supreme Court [just] authorized Missouri to torture a man to death. In the process, they appear to have overruled decades of Eighth Amendment precedents in a quest to let states impose barbaric punishments, including excruciating executions, on prisoners. The court’s conservative majority has converted a once-fringe view into the law of the land, imperiling dozens of decisions protecting the rights of death row inmates, as well as juvenile offenders. Its ruling signals the end of an Eighth Amendment jurisprudence governed by ‘civilized standards’—and the beginning of a new, brutal era in American capital punishment.
“Russell Bucklew is a death row inmate in Missouri who suffers from a rare medical condition called cavernous hemangioma. Due to this disorder, his body is covered with tumors filled with blood vessels. Tumors in Bucklew’s neck and throat, his lips and uvula, which make it difficult for him to breathe. They are highly sensitive and frequently squirt blood. A medical expert, Dr. Joel Zivot, has testified that if Missouri administers a lethal injection to Bucklew, he will die a slow, agonizing death. His tumors will rupture and fill his mouth with blood, and he will suffocate to death in unbearable pain, choking and convulsing on the gurney as he dies.”
Justice Thomas, like his former mentor Justice Antonin Scalia, has long believed that the Eight Amendment should be viewed through the lens at the time of its enactment—not by today’s “civilized standards.”
The Court in its 1958 decision Trop v. Dulles rejected what has been dubbed “the originalist view” of the Constitution, and in particular its application to the Eighth Amendment. It should be remembered that the Eighth Amendment at the time of its enactment permitted branding, the hanging of children, hanging/burning of witches, pillory, and worst of all, slavery—just to name a few.
Justices Gorsuch and Thomas would permit those punishments today under their originalist view of the Eighth Amendment.
Condemned Man Request Alternative Method of Execution
Over the past decade, the Supreme Court has held in two cases—Baze v. Rees and Clossip v. Gross—that that when a death penalty inmate makes an Eighth Amendment claim that a particular method of execution is “cruel and unusual,” he must offer an acceptable alternative to the method he or she is complaining about.
Ronnie Bucklew did exactly as those decisions demanded: he provided the state of Missouri with an alternative that he be put to death by nitrogen gas, a process called “hypoxia” which causes death through a lack of oxygen. He said this method of death would be faster than the lethal injection being offered by Missouri.
“Superedded” Pain Principle
Justice Gorsuch dismissed the nitrogen gas method. Stern explained the right-wing justice’s reasoning this way:
“… Gorsuch rejected Bucklew’s claim, asserting that he failed to prove death by nitrogen would really be ‘feasible’ or less painful … Gorsuch [also] cast doubt on a vast range of precedents built on the ‘evolving standards of decency’ rule by substituting it for the ‘superadded pain’ principle. For instance, Supreme Court rulings outlawing the execution of minors, the mentally disabled, and individuals who committed nonhomicidal crimes all rest on the ‘evolving standards of decency’ rationale. So, too, do decisions that strictly limit the imposition of life without parole on juvenile offenders. Kennedy favored this test, which may be why he voted to block Missouri from executing Russell Bucklew in 2018. Now Justice Brett Kavanaugh has replaced Kennedy, and on Monday, he provided the fifth vote to let Missouri kill Bucklew—and tacitly repudiate his predecessor’s Eighth Amendment jurisprudence.
“Criminal justice reformers must now wait for the other shoe to drop, to see how far Kavanaugh is willing to veer to the right. If the court pursues Gorsuch’s originalist path, then it must overturn Kennedy’s juvenile justice decisions and permit juvenile life without parole once again. It may do so as early as next year. The court could also allow the execution of minors, mentally disabled people, and those who committed crimes other than murder. So long as a state does not ‘superadd pain,’ it can apparently get away with anything, even barbarous executions that don’t intentionally inflict unnecessary suffering. Welcome to our post-Kennedy death penalty jurisprudence, where legalized torture is back on the table.”
In the Baze decision, Justice Thomas revised his originalist Eighth Amendment view in death penalty case with the ridiculous “superadded pain” theory. He wrote that an execution offends the Eighth Amendment only if “terror, pain, or disgrace” are “superadded” to method of death by the state. He argues that, “as originally understood, the Eighth Amendment only prohibited states from intentionally making executions more painful than they had to be.”
Any method of state-sanctioned execution, in and of itself, entails “terror, pain, [and] disgrace” as any second-year law student would understand.
The “EQUAL JUSTICE UNDER THE LAW” insignia should be removed from the entrance of the Supreme Court building. Justice is dispensed, and laws are interpreted, by the Court today based more on ideology than on prior precedent dealing with legitimate constitutional interpretations.
The Supreme Court is now truly the Court of Trump—and it appears that things will only get worse.