“Beginning in the mid-20th century, the Supreme Court maintained that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Thus, as a particular method of punishment grew less common, the Court was increasingly likely to declare it cruel and unusual in violation of the Constitution.
At least some members of the Court’s Republican majority, however, have suggested that this “evolving standards of decency” framework should be abandoned. In Bucklew v. Precythe (2019), the Court considered whether states could use execution methods that risked causing the dying inmate a great deal of pain. Justice Neil Gorsuch’s majority opinion, which held that potentially painful methods of execution are allowed, seems to exist in a completely different universe than the Court’s Eighth Amendment cases that look to evolving standards.
While the Court’s earlier opinions ask whether a particular form of punishment has fallen out of favor today, Gorsuch asked whether a method of punishment was out of favor at the time of the founding. Though his opinion does list some methods of execution, such as “disemboweling” and “burning alive” that violate the Eighth Amendment, Gorsuch wrote that these methods are unconstitutional because “by the time of the founding, these methods had long fallen out of use and so had become ‘unusual.’”
What makes Bucklew confusing, however, is that it didn’t explicitly overrule any of the previous decisions applying the evolving standards framework. So it’s unclear whether all five of the justices who joined that opinion share a desire to blow up more than a half-century of law, or if the justices who joined the Bucklew majority simply failed to rein in an overly ambitious opinion by Gorsuch, the Court’s most intellectually sloppy justice.
In any event, Hamm opens up at least two major potential divides within the Court. Smith says he is intellectually disabled; the state of Alabama wants to execute him anyway. So the case perfectly tees up a challenge to Atkins if a majority of the justices want to go there. Meanwhile, Bucklew looms like a vulture over any cruel and unusual punishment case heard by the Court, as it suggests that the Republican justices may hit the reset button on all of its Eighth Amendment precedents at any time.”
https://www.vox.com/scotus/378058/supreme-court-hamm-smith-death-penalty-eighth-amendment