Justice Anthony Kennedy’s 30-year tenure on the Supreme Court officially ended on July 31, 2018. But the real beginning of the court’s post-Kennedy era may have come Monday, in the justices’ sharply divided 5-4 ruling in Bucklew v. Precythe—rejecting a Missouri death-row inmate’s claim that his execution by lethal injection would constitute cruel and unusual punishment in violation of the Eighth Amendment. And if Bucklew is a harbinger of how the new court is going to resolve such ideologically charged cases going forward, it’s going to get a lot more divisive from here.
At issue in Bucklew is whether the Eighth Amendment forbids a state from executing a death-row prisoner through means that, because of the inmate’s unique physiological condition, carry a substantial risk of inflicting serious pain. Russell Bucklew suffers from a rare condition—cavernous hemangioma—the result of which is that his body is covered with tumors filled with blood vessels. If Missouri uses its regular lethal injection protocol to kill Bucklew, one expert testified that he will instead die a slow, agonizing death—one in which he chokes and suffocates on his own blood. That would seem to violate the Eight Amendment’s prohibition against “cruel and unusual punishment,” so Bucklew sued to challenge that procedure. He didn’t argue that he could not be executed at all, however—but rather that the Constitution requires the state to provide him with, and pursue, an alternative execution method that would cause him less pain.