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September 24, 2015
Is Justice Scalia saying four (and maybe five) colleagues are now ready to judicially abolish death penalty?
The question in the title of this post is prompted by press reports on Justice Antonin Scalia's speech given at Rhodes College on Tuesday. This BuzzFeed story's extended headlined provides the basics: "Justice Scalia Says He 'Wouldn’t Be Surprised' If Supreme Court Ended Death Penalty: In a speech Tuesday at Rhodes College, the conservative Supreme Court justice said that four of his colleagues think that the penalty is unconstitutional, The Commercial Appeal reported." Here is the full context:
Supreme Court Justice Antonin Scalia told attendees of a speech given Tuesday that four of his colleagues believe the death penalty is unconstitutional and that “he wouldn’t be surprised” if the court ends the penalty, according to reports from the event.
Speaking at Rhodes College, the conservative justice bristled at the concept, believing the penalty to be constitutional and telling attendees that death penalty opponents should go to the states if they want to end it, Jennifer Pignolet of The Commercial Appeal tweeted.
According to Pignolet’s report, Scalia said that “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.” Specifically, Scalia said that “he now has 4 colleagues who believe it’s unconstitutional,” Pignolet tweeted.
The statements provide new insight into the court’s internal discussions — or at least Scalia’s take on his colleagues — as his comments go further than Scalia’s colleagues have gone themselves.
After the Glossip ruling in June, I was somewhat dismissive of claims by abolitionists that Justice Breyer's dissent suggested that it might only be a matter of time before there could be a majority of Justices ready to decalre the death penalty categorically unconstitutional. But Justice Scalia's comments now suggest that hopes for coming judicial abolition of capital punishment throughout the United States may not be just wishful thinking.
Prior related posts:
- Despite Glossip, hope for judicial abolition of the death penalty endures
- Would a Prez Hillary Clinton lead to the judicial abolition of the death penalty in the US?
September 24, 2015 at 10:22 AM | Permalink
Comments
Being a bit silly. Two justices didn't join Breyer's dissent -- and I note since then neither said a word officially as executions continued -- though Sotomayor added a "but see" that suggests their sentiments. But, Kennedy joined Alito's majority opinion. Nothing changed there. Still don't have the fifth vote. What did Scalia say that changed that?
Posted by: Joe | Sep 24, 2015 10:46:16 AM
I'm a defense attorney and don't handle capital cases. I just don't see it happening until it's blatantly obvious the votes are there. i've never understood why abolitionists didn't bring up costs. Much cheaper to put one in for life than to carry out a death sentence with appeals and extra security costs of maintaining a death row. Once saw statistic that put execution as 6 times higher.
Posted by: Mitch | Sep 24, 2015 11:05:38 AM
Costs are brought up. Do you mean they should talk about that more?
Posted by: Joe | Sep 24, 2015 1:07:42 PM
I have to wonder if Scalia is trying to make death penalty into a 2016 issue.
I don't see a fifth vote among the current nine (and I am not 100% sure on there even being four votes). However, after the election both Scalia and Kennedy will be over 80 (as will Ginsburg with Breyer not far behind). It seems that Scalia is hinting that whomever might replace him and Kennedy might be the fifth vote.
Posted by: tmm | Sep 24, 2015 2:09:49 PM
If SCOTUS decides that the DP is per se unconstitutional, the states should ignore the ruling and execute anyway. This would be a complete usurpation, and the society doesn't have to listen.
Posted by: federalist | Sep 24, 2015 6:17:15 PM
federalist writes "If SCOTUS decides that the DP is per se unconstitutional, the states should ignore the ruling and execute anyway. This would be a complete usurpation, and the society doesn't have to listen." He's kidding, right?
Posted by: observer | Sep 24, 2015 8:11:50 PM
tmm, if there aren't four votes there, why did the Court rewrite the Question Presented in Hurst v Florida to include an issue whether the Florida capital sentencing procedure violates the Sixth AND the Eighth Amendment? There has to be four votes to grant cert.
Hurst will be argued, along with Montgomery, retroactivity of Miller, on October 13.
bruce
Posted by: bruce cunningham | Sep 24, 2015 8:37:13 PM
Granted the Court could say Florida's death penalty law, due to its quirkiness, is arbitrary and therefore violative of the Eighth Amendment, but not declare broadly that the death penalty is unconstitutional
Posted by: bruce cunningham | Sep 24, 2015 8:40:06 PM
I support Congressional impeachment of Justices for their decisions, and not for frivolous collateral corruption charges. The abolition of the death penalty by the Supreme Court will come in a 5-4 decision, where Anthony Kennedy will decide national policy.
Posted by: Supremacy Claus | Sep 24, 2015 9:37:25 PM
No, I am not. If the Supreme Court can abolish the death penalty, it can abolish the First Amendment. If it purports to abolish capital punishment, it will cease to have any legitimacy, and it can be ignored. In our system, the Court relies on others to enforce its judgments. If others choose not to, it's just plain out of luck.
Posted by: federalist | Sep 24, 2015 10:18:29 PM
"If it purports to abolish capital punishment, it will cease to have any legitimacy, and it can be ignored. In our system, the Court relies on others to enforce its judgments. If others choose not to, it's just plain out of luck"
One recalls many southerners (e.g., Bull Connor, George Wallace) thought the same thing about ending segregation. Similarly, states, including mine, may buck Roe v. Wade to the greatest extent possible, but SCOTUS has successfully retained its ability impose compliance to an extent that's seldom questioned by even the most right-wing commentator.
I don't consider abolition by SCOTUS likely nor, on a 5-4 ruling especially, even preferable. But if it happens, it can be enforced. Nor will any justices be impeached for it.
Posted by: Gritsforbreakfast | Sep 25, 2015 9:43:04 AM
Scalia playing the long game as suggested above makes sense.
Posted by: Joe | Sep 25, 2015 10:11:26 AM
I agree with Grits. The explanation for his being right is that the lawyer profession is a criminal cult enterprise that runs a tighter ship than the KGB. That is why I also support the arrest, trials, and summary executions of the hierarchy of this enterprise. That is the sole path to protecting crime victims and ending the millions of crimes committed a year. At some point, as in the 1980's, the public gets fed up, and realizes the cause of their suffering.
Posted by: Supremacy Claus | Sep 25, 2015 10:17:48 AM
I'm curious about who, exactly, will determine which Supreme Court rulings are proper or improper under federalist's new regime of states ignoring decisions they disagree with. Will it be just one person, or a committee? Maybe appoint several people? Does 9 seem like a good number?
Also, will they have to show their work or can they just say "Nope, this decision is wrong, don't follow it"? What if some states agree with the original decision and not the decision of Court II?
This is going to be very exciting!
Posted by: vachesacree | Sep 25, 2015 2:53:40 PM
Guys, there are two interrelated points. The first is that capital punishment is clearly contemplated by the Constitution and therefore, the Supreme Court cannot be exercising "judgment" versus "will" should it choose to abolish it. So, for all those who think that we must listen to the Supreme Court no matter what, law becomes whatever five guys say, and the only real law is that we have to follow what five guys say--everything else is negotiable.
The second point is far more practical. Anyone can see that a judicial abolition of capital punishment is simply a political decision stripped of any legitimacy. Society may decide, in response, to not follow what the Supreme Court says, and, when push comes to shove, it aint got money or a gun. Restated, if the Supreme Court acts lawlessly, it cannot complain when others follow suit. And if the people stop following the Court it will have only itself to blame.
Posted by: federalist | Sep 26, 2015 12:15:18 AM
