Baze v. Reeds, Part 2

More than anything else, I think this case (and Eighth Amendment jurisprudence generally) demonstrates how varied the approaches are amongst the nine justices on the bench today. While we have a more conservative bench than we had ten, twenty, or thirty years ago, the conservative justices are not taking the same paths up the mountain.

That is demonstrably clear in this case. The plurality opinion, written by the Chief Justice and joined by Justices Kennedy and Alito, upholds Kentucky's use of lethal injection, but holds (as Justice Alito summarizes in his concurrence) that "a State's refusal to change its method [of execution] can be viewed as 'cruel and unusual' under the Eighth Amendment" if, "without a legitimate penological justification," the State rejects an alternative method that is "feasible" and "readily" available and that would "significantly reduce a substantial risk of severe pain."

Justice Thomas, in an opinion joined by Justice Scalia, criticizes both the plurality and the dissent from an originalist perspective:

I write separately because I cannot subscribe to the plurality opinion's formulation of the governing standard... This standard--along with petitioners' proposed "unnecessary risk" standard and the dissent's "untoward risk" standard, post, at 2--finds no support in the original understanding of the Cruel and Unusual Punishments Clause or in our previous method-of-execution cases; casts constitutional doubt on long-accepted methods of execution; and injects the Court into matters it has no institutional capacity to resolve.

While Justice Thomas' brushing aside of the petitioners' and dissent's standards is expected, I'm sure it will come as a surprise to those who supported the nominations of Chief Justice Roberts and Justice Alito to realize they were supporting nominees who would "inject[] the Court into matters it has no institutional capacity to resolve." Yet apparently that is just what has happened.