Unusual Nonsense

And in these cases, the test revealed a serious case of multiple personality disorder.

There are no principles here, none that anyone can agree on, anyway. So while seven justices seemed to think that the drug cocktail was okay, no more than three could sign any one opinion holding as much. This plurality regarded the drug combination as adequate, since those challenging it had not proven a substantial chance of it causing great pain. Justice Stephen Breyer wrote separately to say that he regarded the current drugs as okay too, though based on a different standard. So did Justice John Paul Stevens, who nonetheless took the opportunity to announce that he now regarded the death penalty itself as “cruel and unusual.” Justices Antonin Scalia and Clarence Thomas, meanwhile, argued that to violate the amendment, an execution method has to be intentionally painful, like the torturous deaths inflicted under the Stuarts in England. Meanwhile, Justices Ruth Bader Ginsburg and David Souter dissented, wanting to send the case back for more fact-finding on the question of whether the execution procedures could be easily improved to lessen the chance of severe pain. Having given the country these pearls of guidance, the justices then turned to executing child rapists.

The simple fact is that more than two centuries after the Eighth Amendment’s adoption into the Constitution, the justices still can’t agree about the most basic aspects of its meaning: Does it prohibit a static list of brutalities feared by the Founders or is it flexible--a prohibition against whatever punishments a given age regards as beyond the pale? If the latter, how should the court assess what a given age regards as out of bounds? Should it rely on acts of state legislatures and, if so, how many states’ outlawing a practice should suffice to make it off limits constitutionally to the others? Should the court look to foreign law? Can it consult public opinion polls? And what happens, as with executing child rapists, when states want to open the door for a practice that has been decades in disuse. Is the Eighth Amendment a one-way ratchet--a device that can remove punishments from the policy table but which never puts them back on it--or is there some mechanism by which the court can acknowledge that societal mores sometimes evolve in a more punitive direction? Most fundamentally, should justices--as some openly reserve the right to do--use their own judgments in deciding whether the amendment bars a given punishment or are they bound to some list of objective indicators?

The justices disagree with one another profoundly on all of these questions--and, to varying degrees, these disagreements were all on display last week. The result is a jurisprudence without accepted standards or methodologies on a series of hot-button issues, mostly related to the death penalty, and this leads inevitably to the most political of judicial decision-making. No rule articulated today gets followed tomorrow. And every case, earnestly argued in the language of law, in reality presents a kind of political gut check: Is the challenged practice, in the view of the only nine individuals who matter, okay or not?

The woeful state of the Eighth Amendment is, truth be told, not the fault of the current crop of justices. It is a mess they inherited, one that dates back nearly a hundred years to the court’s earliest efforts to interpret the Eighth Amendment. The court has always spoken in vagaries on this subject--describing a flexible, dynamic prohibition but consistently failing to articulate the precise mechanism by which a practice goes from constitutional one day to verboten the next. Against a backdrop of this sort of mush, every justice has little choice but to follow his or her own instincts or else, as Scalia and Thomas do, to reject the premise of a century’s worth of case law. The result is that cases that should be easy under the amendment’s plain language become agonizing and cases that could be resolved on the basis of evidence and principles become impressionistic.

Two years ago, I wrote an essay attempting to sketch an alternative to this jurisprudential train wreck. The idea was that instead of either pretending the amendment bans only torturous deaths or having justices grope about in their own souls to identify what the court once called “the evolving standards of decency that mark the progress of a maturing society,” the court should focus on the actual words of the amendment itself. To be precise, it should be asking two simple questions about a punishment challenged under the Eighth Amendment: Is it cruel? And, if so, is it unusual?

Imagine for a moment how easy the lethal injection case last week would have been under such a test. Sure, the question of whether the use of this drug cocktail is “cruel” may be tricky; there seems to be no question that if the drugs are administered properly, they cause no pain and, if the procedure is botched, they can cause excruciating pain. So whether their use is cruel depends, as a practical matter, on the likelihood of error and the avoidability of that error using a different combination of drugs. But even if it is cruel, the practice is manifestly not unusual. The challenged drug combination, after all, is the norm in death penalty states--which are still a majority of the states in the country. So by any understanding of the amendment that a middle school kid would understand, the cocktail does not offend its terms.

This approach being far from modern Eighth Amendment law, however, not a single justice proposed to resolve the case on such grounds. Indeed, the court has somehow developed a large body of Eighth Amendment law that assiduously avoids giving clear meaning to the text’s key terms. It is as though First Amendment law had never bothered to define “speech” or the court had neglected to give meaning to the terms “unreasonable” or “search and seizure” in the Fourth Amendment. When the court so fails, the only thing left is how the justices feel.

Focusing on the words of the amendment would not eliminate from Eighth Amendment cases a measure of subjectivity, which is probably inherent in the word “cruel” and, to a lesser extent, “unusual” as well. Nor is it clear, at least not to me, whether it would move the court in a more liberal or more conservative direction in the long run. That would depend on how the court ends up defining the terms in question. But such a focus would allow for a dynamic interpretation of the amendment that is not pure politics, and it may offer a common vocabulary for the justices to resolve cases that today needlessly divide them.

That would be no small thing. When the court cannot address a simple question like the constitutionality of an execution procedure without fracturing over the means of getting to an answer to which seven of them agree, the justices have a problem.

Maybe it’s that they’re asking the wrong questions.

Benjamin Wittes is a Fellow and Research Director in Public Law at The Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law.

By Benjamin Wittes