Antonin Scalia thinks the death penalty may be going away (again)

posted at 2:01 pm on September 24, 2015 by Jazz Shaw

As the next entry in our continuing series on how nothing in the legal system is permanent, settled or a “done deal” (as Rachel Maddow likes to say about Obamacare) we stop by for a visit with Supreme Court Justice Antonin Scalia. His Honor was giving a speech at his grandson’s college this month and, as usual, he let forth with all sorts of unvarnished opinions. Chief among his themes was the idea that you don’t mess with the constitution, but he got down to some specifics as well. One of the more controversial ones was his feeling that there may actually be enough votes on the court right now to do away with the death penalty whether he agrees with that sentiment or not. (Commercial Appeal)

On specific issues, Scalia waded into the death penalty, saying he “wouldn’t be surprised” if his court ruled it unconstitutional, despite his belief that the Constitution allows for it with the establishment of protections like a fair trial.

But on the issue of drone strikes killing Americans abroad — likely with no due process — Scalia said he had no fundamental issue with it. “I think, if that person has taken up arms against the United States, what’s the difference between allowing our soldiers to shoot him dead and allowing a drone to kill him?” he said.

While Scalia is a solid constitutional scholar he’s also a realist. If there is another challenge to the fundamental lawfulness of capital punishment and he thinks there are enough weak knees on the bench to knock it down then I assume he knows what he’s talking about. It doesn’t take a great deal of imagination to predict most of those who would vote to do away with it. Ginsburg, Breyer, Sotomayor and Kagan are a given, but who would be the fifth vote? The easy answer might seem to be Kennedy, but I’m not so sure. It’s true that Kennedy has held against capital punishment in cases of rape and also when it comes to minors, but for adults – particularly in terrorism situations – he found in favor of allowing it in Williams v. Warden Taylor in 2000. So while his record on the question has some exceptions he doesn’t seem totally opposed. So who does that leave? Alito and Thomas are solid, but what about John Roberts? He sided with a Kansas law upholding the death penalty in Kansas v. March in 2005.

So where is Scalia seeing a weak link in the chain here? He must know something from private conversations which he’s keeping close to the vest. (Not terribly shocking. They all tend to be pretty close mouthed about internal discussions.)

One other point from his speech was worth noting on a more general level.

Scalia said arguments for keeping the Constitution a “living document” that changes with the times usually center around the idea of adding freedom, noting, “I don’t know why you think it’s always good, unless you’re an anarchist,” to add freedoms.

“I thought the trick was to balance freedom with order,” he said.

The cases that Scalia called “structural,” which define the backbone of the country, he said, are “what I fall on my sword for.”

Liberals will immediately rebel at the idea that “adding freedom” is a bad thing, but if you look closely at what he’s saying it’s not exactly an authoritarian position. The point is that the original Constitution was built with all sorts of freedom in it already. Sure, they missed out on the whole slave thing and that needed to be corrected later, but essentially the idea that all men (which includes women) are created equal was some pretty solid thinking. And there were a number of rights built into that assumption. But if you add too many more you lose the ability to protect the citizens from themselves and your orderly society is in danger.

Food for thought.


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Comments

How about this warn out issue going to the bottom of the list and take care of business at hand?

31giddyup on September 24, 2015 at 2:07 PM

OT:
[email protected]

Donald Trump, Roger Ailes To Meet To Iron Out Differences http://bit.ly/1gRNheS

Cable box data hit the Fox desk early this AM.
If the twitter revolt was any indication,
they saw a mass exodus.

Dave’s not here:
David Corn @DavidCornDC 5m5 minutes agoFox News submits to Donald Trump’s whining and bullying.

David [email protected]
Sure, the Pope had one (!) line about abortion, but he said much more about climate change, poverty, immigration, Iran/Cuba, social justice.

David [email protected]
Enjoying lefties’ new found belief in Catholic dogma and papal infalibility

PaleoRider on September 24, 2015 at 2:08 PM

Scalia said arguments for keeping the Constitution a “living document” that changes with the times usually center around the idea of adding freedom, noting, “I don’t know why you think it’s always good, unless you’re an anarchist,” to add freedoms.

Which gives lie to the lure of Libertarian idealism.

Neitherleftorright on September 24, 2015 at 2:12 PM

But, what about crucifying? (0:03)

faraway on September 24, 2015 at 2:12 PM

What if we call it post birth abortion?

PaleoRider on September 24, 2015 at 2:13 PM

Other than finding it cruel or unusual (which it is neither), how does one go about finding it unconstitutional?

Occams Stubble on September 24, 2015 at 2:13 PM

“Let the decision stand” applies only to progressive decisions.

“Progressive” is a euphemism, often (though not in this case) for anti-white.

David Blue on September 24, 2015 at 2:13 PM

PaleoRider on September 24, 2015 at 2:08 PM

Would it be far too much to ask that a single thread around here be about something other than Donald Trump?

KingGold on September 24, 2015 at 2:13 PM

Other than finding it cruel or unusual (which it is neither), how does one go about finding it unconstitutional?

Occams Stubble on September 24, 2015 at 2:13 PM

By voting. Five votes is a win; four votes is a loss.

David Blue on September 24, 2015 at 2:14 PM

Didn’t he just open his big fat mouth and virtually guarantee it?

meci on September 24, 2015 at 2:15 PM

But if you add too many more you lose the ability to protect the citizens from themselves and your orderly society is in danger.

Absolutely…freedoms always come with winners & losers. Freedom of speech, someone is going to be offended. Right to bear arms – some tyrant won’t be able to roll over the populace.

But as you add more and more “freedoms” the losers begin to outweigh the winners.

Freedom for gays to marry – loss of religious freedoms, loss of free association, and frankly slavery (i.e. forcing someone to work and provide the fruits of their labor against their will.)

Freedom from unreasonable(everybody always forgets that word) search & seizure means no more stop & frisk and now people can’t walk home without being afraid of a mugging.

the list goes on and on.

Rogue on September 24, 2015 at 2:17 PM

Just another stumble along the the road to the Fall of the West.

claudius on September 24, 2015 at 2:18 PM

It’s not that I don’t believe in the death penalty it’s that I simply don’t trust government.

MoreLiberty on September 24, 2015 at 2:18 PM

Would it be far too much to ask that a single thread around here be about something other than Donald Trump?

Well we have bacon eggs Trump and spam, it s only got a little trump innit?

PaleoRider on September 24, 2015 at 2:22 PM

I don’t think the Supreme Court is going to overturn the death penalty. Heck, even President Obama supports the death penalty.

SoulGlo on September 24, 2015 at 2:22 PM

Well, I’m sure they won’t include Assisted Suicide or Euthanasia with that.

LoganSix on September 24, 2015 at 2:24 PM

Argument: The death penalty is inhuman and barbaric.

Meanwhile:

“I DEMAND SOMEBODY ELSE PAY FOR MY RIGHT TO AN ABORTION!!”

Jedditelol on September 24, 2015 at 2:26 PM

The creepy pope approves.

Schadenfreude on September 24, 2015 at 2:30 PM

FIRST MEETING A VOLUNTEERS TO ASSIST HRC WITH HUh SUICIDE CLUB

nah. I’m holding out for gallows

PaleoRider on September 24, 2015 at 2:31 PM

Where does the Pope stand on this issue?

weedisgood on September 24, 2015 at 2:32 PM

second look at the Pope’s speech?

corona79 on September 24, 2015 at 2:33 PM

Man, oh man, do we need to elect a Republican President next year. ANY Republican President.

wbcoleman on September 24, 2015 at 2:40 PM

Man, oh man, do we need to elect a Republican President next year. ANY Republican President.

wbcoleman on September 24, 2015 at 2:40 PM

Which of them, Bush or Hillary?

Rix on September 24, 2015 at 2:44 PM

The only way the death penalty will be abolished is if we send more clowns/patsies before SCOTUS to make the defense.

The argument for is very, very simple.

1. The system has become a morass because the intention was to argue to cheapwads Cost-Prohibitive citizens that it’s more expensive than a simple life sentence.

If the process were simplified, we could re-tier the offenders. For example, the two lunatics in Connecticut who raped/tortured/murdered the entire family have no real alibi. They did it.

Their argument of childhood abuse/mental defect only proves they’re not rehabilitative as their latter actions have only compounded their mentalities. We kill animals who attack humans because “the taste” means they’re no longer afraid of killing humans. It’s the same primal mindset. Once that hurdle is cleared, it cannot be re-conditioned.

So the first argument is why are killing actual animals who attack humans, if they comprehend less about their actions than any human? We’re either animals too, or not.

2. Restorative Justice is already attacking “Life without Parole” as cruel/unusual by highlighting how it’s akin to deprivation techniques.

If that’s validated, how is execution cruel/unusual at the same time? If Life is torture, than execution is humane. Again, that’s the argument given about putting down animals instead of caging them for life.

So both cannot be true. But, the prog courts will make them both true.

3. If both are found true, then Life does not mean “life”, it means twenty years and then some form of house arrest. But we have more than enough case precedent to show recidivism is beyond rampant and violent offenders under house arrest/restraining orders spend more time trying to break the rules than trying to exist within the confines.

Again, we’re not talking about drug or alcohol offenses. These are rapists, molesters, killers. They do not think they’re apart of the social construct, so restraints are taken as a personal attack.

4. Run a conveyor belt of victims family members who want it. If Scotus can stand against them, then it’s convention time.

budfox on September 24, 2015 at 2:44 PM

By voting. Five votes is a win; four votes is a loss.

David Blue on September 24, 2015 at 2:14 PM

But these guys are supposed to justify their votes with constitutional interpretations.

Occams Stubble on September 24, 2015 at 2:53 PM

But these guys are supposed to justify their votes with constitutional interpretations.
Occams Stubble on September 24, 2015 at 2:53 PM

Huh, I thought it was based on what European countries do.

Marcola on September 24, 2015 at 2:59 PM

The easy answer might seem to be Kennedy, but I’m not so sure. It’s true that Kennedy has held against capital punishment in cases of rape and also when it comes to minors, but for adults – particularly in terrorism situations – he found in favor of allowing it in Williams v. Warden Taylor in 2000. So while his record on the question has some exceptions he doesn’t seem totally opposed.

Kennedy would be the 5th vote. For one, Williams v. Taylor dealt with procedural issues and ineffective assistance of counsel (actually there were two Williams v. Taylor cases decided in 2000, the second pertaining to federal hearings). It was not a case where the DP was “upheld.” Second, Kennedy’s been moving the other direction on everything, including the DP (e.g. Roper v. Simmons).

One thing interesting about Scalia’s statement is that the Court upheld KY’s lethal injection protocol in 2008 as not running afoul of the Eighth Amendment, and even Breyer concurred in the judgment there. So if the method is not deemed unconstitutional, on what grounds would the DP itself deemed unconstitutional? My guess would be that it is imposed arbitrarily or doesn’t serve penological interests (probably the latter).

dorkintheroad on September 24, 2015 at 3:11 PM

The progressive ideal is a state in which the only death penalty on the books is for owning a gun. With criminals killing whenever and wherever they feel like it, as long as they don’t bother the elite’.

Their definition of a violent criminal is a “front line soldier in our war against the repressive society”. Plus someone they admire for flaunting the rules of the society they hate- ours.

They love murderers for the same reason they love abortionists. Both are reducing the number of evil humans oppressing Holy Mother Gaia.

They hate gun owners because they might be able to fight back- when the murderers come for them.

Also, the first rule of tyranny is “terror must be maintained”. Criminals running amok make a great excuse for Gestapo tactics against anyone the “enlightened ones” don’t like.

Once you understand that progressives are by nature power-hungry, misanthropic, and utterly amoral, their seeming doublethink on issues like these makes perfect sense.

clear ether

eon

eon on September 24, 2015 at 3:19 PM

I disagree, Eon. In a pure “progressive” state, the death penalty will be completely legal, but used far more than it is now. Things like being a Christian will merit it. Disagreeing with the Left will certainly be cause for death.

No, the death penalty will certainly exist. The more left the society, the more it’s used. Pol Pot, Hitler, Stalin, Mao, Castro–all sent millions to die.

It’s just that in those societies, the murderers and thieves and rapists are in control of the government. Of course they will butcher anyone good.

Vanceone on September 24, 2015 at 3:26 PM

Next up: Pederasty is a Constitutional right.

vnvet on September 24, 2015 at 3:27 PM

We always have Texas to pick up the slack for those states not executing their fair share of the deserving.

DAT60A3 on September 24, 2015 at 3:35 PM

We always have Texas to pick up the slack for those states not executing their fair share of the deserving.

DAT60A3 on September 24, 2015 at 3:35 PM

Ohio was doing a great job for a while. In fact, they use to call it Little Texas.

Blake on September 24, 2015 at 3:40 PM

Liberals will immediately rebel at the idea that “adding freedom” is a bad thing

Really? Because I’m pretty darn liberal and i have no problem with that statement. Actually seems more like something that would bother libertarians, frankly.

Tlaloc on September 24, 2015 at 3:55 PM

Other than finding it cruel or unusual (which it is neither),

Occams Stubble on September 24, 2015 at 2:13 PM

Seems like a pretty easy case could be made for it being both, actually.

Tlaloc on September 24, 2015 at 3:57 PM

“Progressive” is a euphemism, often (though not in this case) for anti-white.

David Blue on September 24, 2015 at 2:13 PM

The privileged group usually sees equality as a loss:

In a deliberate attempt to promote a gender-fair classroom, Weston teacher Liz Muney began calling on boys and girls alternately from her attendance roster. After two days the boys blew up, claiming that she was unfair. “Equality was hard to get used to; they perceived it as a loss,” she told Orenstein.

http://peggyorenstein.com/books/reviews/schoolgirls_startrib.html

Tlaloc on September 24, 2015 at 3:59 PM

Once you understand that progressives are by nature power-hungry, misanthropic, and utterly amoral, their seeming doublethink on issues like these makes perfect sense.

eon on September 24, 2015 at 3:19 PM

*eyeroll*

Tlaloc on September 24, 2015 at 4:03 PM

First time I disagree with him. What is he, 80?

WryTrvllr on September 24, 2015 at 4:04 PM

*eyeroll*

Tlaloc on September 24, 2015 at 4:03 PM

Whoa. You can do that with those extra lids?

Come play at my house, prairie dog.

WryTrvllr on September 24, 2015 at 4:06 PM

The bigger problem with “adding freedom” is that the more “rights” you create the more those “rights” come into conflict.

Such as freedom of religion and gay marriage. Already the “gay rights” people want to narrow religious freedom to “going to church on Sunday” with no other allowances for people to legally exercise their religious conscience.

And the more “rights” you create – the more will be created. Once you have as the sole basis for marriage being “love”, it becomes pretty difficult to argue against polygamy, for example. Why is it arbitrary to say marriage must be between a man and a woman but not arbitrary to say marriage can only be between 2 people?

Bad case-law always begets more bad case-law. It always expands, it never retracts.

And note, Scalia isn’t arguing against congress and/or states can’t pass laws granting more “freedoms” – just that we shouldn’t “find” them in the Constitution.

Monkeytoe on September 24, 2015 at 4:06 PM

Tabloc,

In a deliberate attempt to promote a gender-fair classroom, Weston teacher Liz Muney began calling on boys and girls alternately from her attendance roster. After two days the boys blew up, claiming that she was unfair. “Equality was hard to get used to; they perceived it as a loss,” she told Orenstein.

I sincerely doubt this ever happened. Show me the classroom where a) people are counting who gets called on and b) people are upset at not being called on. There may be 2 kids in any class that truly care about being called on.

this is the type of made-up anecdote people use because there is no real evidence to support their ridiculous theories.

Monkeytoe on September 24, 2015 at 4:09 PM

this is the type of made-up anecdote people use because there is no real evidence to support their ridiculous theories.

Monkeytoe on September 24, 2015 at 4:09 PM

Like Ballisiles (name???) who wrote that anti-gun book “Arming America” based on completely fabricated evidence. Or Glass or Dan Rather and the National Guard story (he didn’t make up the evidence, just believed and used obviously fake evidence that supported his politics).

the list goes on and on.

Monkeytoe on September 24, 2015 at 4:11 PM

Change the “United States Supreme Court” to the “United States Supreme Junta”.

A nation of men, no longer of laws.

jnelchef on September 24, 2015 at 4:12 PM

I sincerely doubt this ever happened. Show me the classroom where a) people are counting who gets called on and b) people are upset at not being called on. There may be 2 kids in any class that truly care about being called on.

Monkeytoe on September 24, 2015 at 4:09 PM

Actually, thinking about it, people obsessed with gender/race issues will count such things. In law school the women went nuts on a professor they believed didn’t call on enough women in class. It seemed 50/50 to me, but I wasn’t keeping score. So, after that he started calling on 2 women to every male. No male cared whatsoever.

But, that was law school, a very liberal lawschool, where the women involved saw everything through a victimhnood/gender lens. So, they actually kept score. Normal people don’t. Which means, normal boys aren’t going to give 2 sh*ts over who is called on.

Monkeytoe on September 24, 2015 at 4:14 PM

Let it go away.

But know and prepare for the consequences because the plea bargaining choices will be squeezed from both ends now.

On one end someone who would be incarcerated for life without parole could now bargain to get that parole.

On the other end removing jailtime for marijuana possession would eliminate that as a bargaining chip against punishment for more egregious offenses. And those who expect fewer incarcerations will be surprised that there won’t be that many and instead the incarcerations will involve harsher sentences.

MaggiePoo on September 24, 2015 at 4:21 PM

Speaking of being called on, I took a class totally unrelated to my major because I was curious. I was the only one there who wasn’t majoring in the subject and the professor seemed to know the other students.

He never called on me even though I’m not shy about raising my hand. It was quite obvious because there were only about a dozen students. After two or three weeks I blurted out ‘Hey, I’m in this class too!’

He was ‘fairer’ after that.

But this wasn’t a male/female thing because, ahem, it was a women’s college.

My point is only that there are different types of bias and there may be other reasons for calling/not calling on specific students. To claim that it’s a prevalent practice or institutional I think is a mistake. Each student should make his/her determination but, of course, if there are SJW’s involved everything will go pear-shaped in a hurry.

MaggiePoo on September 24, 2015 at 4:41 PM

But these guys are supposed to justify their votes with constitutional interpretations.

Occams Stubble on September 24, 2015 at 2:53 PM

Anyone who’s read Roe v Wade knows they don’t always take that obligation seriously. It’s explicitly irrelevant in that decision where in the Constitution the Court chooses to “find” or rather insert the right to abort.

David Blue on September 24, 2015 at 5:24 PM

Antonin Scalia thinks the death penalty may be going away

sounds like we need even more citizen carry…

deepdiver on September 24, 2015 at 5:53 PM

The DP is not going away.

Blake on September 24, 2015 at 11:00 PM

I just don’t think this is a surprise. After all, John Roberts is the 5th liberal rubber stamp vote on the SCOTUS, which should actually be called the Liberal Politburo not the Supreme Court. The left doesn’t even have to hope for their normally left leaning moderate Kennedy anymore. Everything that goes to the courts will be decided by the Democrats and how they want it decided

.
The great democratic republic experiment is over and it obviously failed, as men are more corrupt then even the founding fathers thought they were.

pwb on September 25, 2015 at 12:20 PM