The Constitution’s ban on “cruel and unusual” punishment is in grave danger from the Supreme Court

With Kennedy gone, the Supreme Court’s already rethinking the Eighth Amendment.

There probably isn’t much doubt how Mathena v. Malvo, a case the Supreme Court will hear on Wednesday, will wind up being resolved.

The “Malvo” in this case is Lee Boyd Malvo, one half of the infamous pair of serial killers who terrorized the Washington, DC area with a sniper rampage in 2002. He was 17 at the time of the rampage, and he claims that the sentencing courts did not follow the proper process for condemning a juvenile offender to life without parole — though it’s doubtful that a majority of the Court will agree with him.

Several of the justices lived in the DC area during the three-week period when residents were scared to go outside for fear that they would be killed by Malvo and his partner, John Allen Muhammad. Malvo’s legal arguments rest on a fairly aggressive reading of a 2012 Supreme Court decision that split the Court 5-4. Notably, former Justice Anthony Kennedy cast the key fifth vote in that decision.

But even in the likely event that Malvo loses, it matters a great deal how Malvo loses. Malvo claims that he was sentenced in violation of the Eighth Amendment’s prohibition on “cruel and unusual punishments.” And the Supreme Court signaled just a few months ago that it wants to dramatically roll back the scope of that amendment.

Last April, in Bucklew v. Precythe, the Supreme Court signaled that it plans a wholesale rethinking of how it understands the Eighth Amendment. Malvo is the Court’s first Eighth Amendment case since Bucklew, so it could offer a window into just how deeply the Court’s Republican majority plans to cut into the shield against bizarre and excessive punishments.

Malvo could prove to be a fairly minor case, which simply states that the Court will not apply its 2012 decision in Miller v. Alabama — which held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders” — in the specific way that Malvo seeks. In theory, the case could also end in a victory for Malvo, although that outcome seems unlikely.