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Judge Bumatay’s Originalist Eighth Amendment dissent from denial of rehearing en banc

In August, a Ninth Circuit panel held that the denial of sex-reassignment surgery to a prisoner with gender dysphoria violates the Eighth Amendment. The Ninth Circuit has now denied rehearing en banc in that case. Judge Patrick Bumatay, who was confirmed in December, wrote a dissent from denial of rehearing en banc. He was joined in fully by Judges Callahan, Ikuta, R. Nelson, Bade, and VanDyke. (Judge Collins only joined Part II.)

Judge Bumatay’s dissent is thoroughly originalist. Here is the introduction from Part I of the opinion:

In holding that Idaho violated the Eighth Amendment, the panel opined that the Constitution’s text and original meaning merited “little discussion.” I disagree.

As inferior court judges, we are bound by Supreme Court precedent. Yet, in my view, judges also have a “duty to interpret the Constitution in light of its text, structure, and original understanding.” NLRB v. Noel Canning, (2014) (Scalia, J., concurring). While we must faithfully follow the Court’s Eighth Amendment precedent as articulated in Estelle v. Gamble,(1976), and its progeny, “[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in part, rev’d in part and remanded, 561 U.S. 477 (2010).

Accordingly, the Eighth Amendment’s history and original understanding are of vital importance to this case.

Judge Bumatay also relies extensively on the work of Professor John Stinneford, the leading scholar on Eight Amendment originalism.

In the 18th Century, a punishment was “unusual” if it ran contrary to longstanding usage or custom, or had long fallen out of use. Bucklew, (citing 4 William Blackstone, Commentaries on the Laws of England 370 (1769); Stuart Banner, The Death Penalty: An American History 76 (2002); Baze v. Rees, 553 U.S. 35, 97 (2008) (Thomas, J., concurring); John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71, 1814 (2008)). This early understanding comports with the plain meaning of “unusual,” which has changed little from our Nation’s founding. See Harmelin v. Michigan, (1991) (comparing Webster’s American Dictionary (1828) definition of “unusual” as that which does not “occu[r] in ordinary practice” with Webster’s Second International Dictionary 2807 (1954) as that which is not “in common use.”).

Conversely, customs enjoying a long history of usage were described as “usual” practices. Stinneford, supra, at 1770. James Wilson, a key contributor to the Constitution, stated that “long customs, approved by the consent of those who use them, acquire the qualities of a law.” 2 James Wilson, Collected Works of James Wilson 759 (Kermit L. Hall & Mark David Hall eds., Indianapolis, Liberty Fund 2007); see also Stinneford, supra, at 1769. Likewise, early American courts construing the term “cruel and unusual” (generally, as used in state constitutions) upheld punishments that were not “unusual” in light of common law usage. Stinneford, supra, at 1810–11.

I also commend Judge Bumatay’s general approach to the case. Often, originalist opinions are curt or dismissive towards the person asserting a right not supported by the original meaning of the Constitution. Not here.  Judge Bumatay goes out of his way to identify with the prisoner’s situation, even though the law is not in her favor. Here is the introductory section of the opinion:

Like the panel and the district court, I hold great sympathy for Adree Edmo’s medical situation. And as with all citizens, her constitutional rights deserve the utmost respect and vigilant protection. As the district court rightly stated,

The Rule of Law, which is the bedrock of our legal system, promises that all individuals will be afforded the full protection of our legal system and the rights guaranteed by our Constitution. This is so whether the individual seeking that protection is black, white, male, female, gay, straight, or, as in this case, transgender.

Adree Edmo is a transgender woman suffering from gender dysphoria—a serious medical condition. While incarcerated in Idaho’s correctional facilities, she asked that her gender dysphoria be treated with sex-reassignment surgery (“SRS”). After consultation with a prison doctor, her request was denied. She then sued under the Eighth Amendment.

I respect Edmo’s wishes and hope she is afforded the best treatment possible. But whether SRS is the optimal treatment for Edmo’s gender dysphoria is not before us. As judges, our role is not to take sides in matters of conflicting medical care. Rather, our duty is to faithfully interpret theConstitution.

That duty commands that we apply the Eighth Amendment, not our sympathies. Here, in disregard of the text and history of the Constitution and precedent, the panel’s decision elevates innovative and evolving medical standards to be the constitutional threshold for prison medical care. In doing so, the panel minimizes the standard for establishing a violation of the Eighth Amendment.

Judge Bumatay’s opinion serves as a model of how other courts should treat similar issues.

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About The Author

Josh Blackman

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit

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