Today’s newspaper brings news that the Supreme Court of the United States has accepted for review a case challenging lethal injection as the means to kill convicted murderers. Apparently the argument is that the cocktail mixture of drugs used to ensure the demise of the offender causes the poor fellow sufficient "pain" as to violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

What kind of insanity is this? Convicted murderers feeling a little pain during their execution? Oh, the horror! It absolutely boggles the mind that the Supreme Court would entertain even for a nano-second the argument that convicted murderers are entitled to a painless execution as a matter of constitutional law. It is more than absurd, it is obscene. For a killer to receive the death penalty in this country requires the prosecution to jump through so many hoops that only the most repellant murderer committing the most heinous homicide is usually even eligible for the punishment. After conviction, the nation’s appellate courts, both state and federal, have dedicated themselves to exploiting every loophole to reversing the jury’s verdict and frustrating efforts to execute the murderer.

The U.S. Constitution authorizes capital punishment.  When the Supreme Court in 1972 declared the death penalty unconstitutional (Furman v. Georgia), two justices voted in majority on grounds unrelated to whether the penalty was cruel and unusual. Four years later, and in the face of a public outcry, these two justices joined the former minority and new members to upheld the death penalty (Gregg v. Georgia). Since then, however, determined opponents have worked at the margins to continuous narrow the number of murderers eligible for capital punishment. Now it seems the argument is that capital punishment is constitutional, only that there no means acceptable to the Courts by which the sentence can be carried out!

Perhaps the Supreme Court will reach the correct decision. However, the very fact the question is even before the Court demonstrates how unhinged the jurisprudence of the Court is regarding the cruel and unusual clause. Bluntly put, it is simply none of the Court’s business the means that states or the federal government use to execute convicted killers. A concept such as "cruel and unusual" must perforce draw its content and parameters from the generalized opinion of the public. That opinion will be reflected in the legislature which defines the means of punishment. For judges to substitute their opinion of what is cruel and unusual in place of the legislature is the height of hubris which has no textual basis in the constitution.

In this area, as in so many others, the Supreme Court drifts unanchored to the Constitution, its decisions dictated by the feelings of its changing membership. It is a rogue court, and it must be reigned in.