The synopsis of <a href="http://news.yahoo.com/s/ap/20080107/ap_on_go_su_co/scotus_lethal_injection">this case</a> goes as follows:

The state of Kentucky, like other states that use lethal injection, uses a three-drug system that recently has been questioned as to whether the condemned feel pain during the procedure.

The petitioners stipulate that the chance that such occurs makes the procedure unconstitutional under the Eighth Amendment, and thus that the Supreme Court must remedy the situation.

The respondent, the Commissioner of the Kentucky Department of Corrections, of course says this is a load of bollocks.

Firstly, and of lesser import, is the question of standing. Do two inmates have legal standing to challenge a procedure that has not happened yet? Common law has always held that the act in question must have already occurred to be remediable. Thus a police abuse that lead to a citizen death is remediable not in appellate courts, but in criminal court (trying those involved in breaking a criminal code) or civil court (with certain relatives or former spouse of the deceased being able to cite a tort). Standing is not clear in this case, and typically in such instances the Supreme Court yields to lower courts, and federal courts should in general yield to state courts in such instance.

The second and most important question is one of venue: does the Supreme Court of the United States have jurisdiction of any sort? Certainly this falls outside of original jurisdiction and thus we refer to appellate jurisdiction. However, if the federal courts in general lack purview then, ipso facto, certiorari cannot be granted by the Supreme Court.

So thus the question falls down to: Does the ban on "cruel and unusual punishments" render this method of capital punishment illegal.

The answer is: obviously not, to any thinking person.

The Constitution allows for the death penalty twice, both in the Fifth and Fourteenth Amendments, declaring that no person shall be deprived their life, liberty, or property without due process. Thus it was in the understanding of the Constitution's drafters, ratifiers, and constructors of future amendments that capital punishment was legal. By definition, there is no method of capital punishment guaranteed to be without pain in some, most, or all cases. And thus if there is a chance (or a certainty, for that matter) that pain occurs, it does not have any bearing on the legality of the procedure.

Like all aspects of the law, it is guided by tradition and custom. Indeed, in ancient Greek, the same word applied to both custom and to law: <i>nomos</i>. It was thus that the Constitution's drafters held drawing and quartering to be a tyrannical and barbaric practice, but death by gallows to be both legal but applicable to a wider swath of crime and criminals than in the present. Since we are to be a country of laws and not of men, where the wills of those with power - even a shifting Supreme Court majority - are not allowed to run free, then we are bound to the plain meaning given to this text by its authors, men who said what they meant and meant what they said, who spoke in precise language devoid of pretense and nuance (in other words, in dry legalese).

It is thus that we can conclude that capital punishment in this instance is purely a state matter, and like all law that is solely a matter for the several states, its judicial review properly ends at the state level. The Supreme Court has no jurisdiction and no right to meddle in the affairs of the State of Kentucky in this case, and only has the right to review in order to correct a lower federal court's meddling.