Analysis: The Supreme 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 violate the Eighth Amendment
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—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.
, there are at least three respects in which I think he would have had trouble joining the majority’s opinion, which was written by Justice Neil Gorsuch. First, as others have noted, Justice Gorsuch offered a remarkably static definition of cruel and unusual punishment, focusing on methods that had fallen into disrepute at the time the Eighth Amendment was written—in 1791—and not on the “evolving standards of decency” that the modern Supreme Court has repeatedly held to be the linchpin for Eighth Amendment analysis.
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