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

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.