Lethal Injection Constitutional. Gotta Love Scalia.
By patriotroom Posted in The Courts — Comments (56) / Email this page » / Leave a comment »
It was not much of a surprise that the Supreme Court found, by a 7-2 vote, that lethal injection was constitutional under the 8th Amendment and is not "Cruel and Unusual Punishment." As a method of killing, it is, after all, about as tame as it gets, especially compared to the way some of these killers treated their victims.
Justice Scalia's name is practically a code word for any politician who wants to burnish their credentials as a strict constructionist conservative. I am not sure how many of these politicians have any idea why he is different from the rest. I have been a huge fan of Justice Scalia's since reading his opinions in law school. He is to conservative lawyers what Reagan is to conservative politicians. But Scalia's appeal is not just his brilliance. He has a wicked wit and when he challenges the other justices he demolishes them with sarcasm and clear logic. He takes no prisoners.
The lethal injection case is Baze v. Rees. In the following excerpts I have removed all citations. The link to the full text of the opinion is here.
Liberal Justice John Paul Stevens dissents because he thinks that not only is lethal injection violative of the 8th Amendment, he thinks capital punishment itself is unconstitutional. Scalia is having none of it.
First Scalia slams him for judicial activism, i.e. writing social policy from the bench despite the laws passed by elected legislatures. Scalia writes:
Read on . . .
JUSTICE STEVENS concludes as follows: “[T]he imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”
This conclusion is insupportable as an interpretation of the Constitution, which generally leaves it to democratically elected legislatures rather than courts to decide what makes significant contribution to social or public purposes. Besides that more general proposition, the very text of the document recognizes that the death penalty is a permissible legislative choice. [snip]
[Stevens's] analysis begins with what he believes to be the “uncontroversial legal premise” that the “ ‘extinction of life with only marginal contributions to any discernible social or public purposes . . . would be patently excessive’ and violative of the Eighth Amendment.” Even if that were uncontroversial in the abstract (and it is certainly not what occurs to me as the meaning of “cruel and unusual punishments”), it is assuredly controversial (indeed, flat-out wrong) as applied to a mode of punishment that is explicitly sanctioned by the Constitution. As to that, the people have determined whether there is adequate contribution to social or public purposes, and it is no business of unelected judges to set that judgment aside.
Scalia also doesn't like the "an innocent man could be executed under the death penalty" argument.
JUSTICE STEVENS’ final refuge in his cost-benefit analysis is a familiar one: There is a risk that an innocent person might be convicted and sentenced to death—though not a risk that JUSTICE STEVENS can quantify, because he lacks a single example of a person executed for a crime he did not commit in the current American system. His analysis of this risk is thus a series of sweeping condemnations that, if taken seriously, would prevent any punishment under any criminal justice system.
Then Scalia tell Stevens that if he doesn't like the inefficiency of the death penalty, it is Stevens's own fault, and if he wants to whine about it, he can go home and get himself a big bowl of crybaby soup.
But of all JUSTICE STEVENS’ criticisms of the death penalty, the hardest to take is his bemoaning of “the enormous costs that death penalty litigation imposes on society,” including the “burden on the courts and the lack of finality for victim’s families.” Those costs, those burdens, and that lack of finality are in large measure the creation of JUSTICE STEVENS and other Justices opposed to the death penalty, who have “encumber[ed] [it] . . . with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it”—the product of their policy views “not shared by the vast majority of the American people.”
Then we have shining example of why elitist liberal Justices think they should be making the law: They are so much smarter than the rest of us. Scalia gives him the Atomic Elbow Drop off the top rope.
But actually none of this really matters. As JUSTICE STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ . . . I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional."
Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” It is JUSTICE STEVENS’ experience that reigns over all.
I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views—which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution
That, my friends, is why this election is of such great importance. You can either get Justices like Scalia (whom McCain says is his model Justice) protecting our rights under the Constitution, or you can get Justices like Stevens, making the call from the bench.
Bill Dupray at The Patriot Room
I still can't figure out how Souter ended up being more liberal then Breyer. It just doesn't make sense.
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
For the purpose of the post though, it is not critical. Thanks for correction.
Bill Dupray at The Patriot Room
I think the constitutionality of the death penalty is sort of relevant here. I am certainly NOT anti-death penalty, but I am also very suspect of giving the State the ability to put people to death. Especially considering the current state of 2nd amendment rights in America. I think calling Stevens a judicial activist in this specific case is a bit thin.
there is no distinctly native American criminal class except Congress
--AuH2O--
He says he will decide the social benefits of the death penalty, which is the province of the states, not the Supreme Court. There is no debate as to whether the death penalty itself is constitutional. As Scalia says, the death penalty is "explicitly sanctioned by the Constitution."
Bill Dupray at The Patriot Room
That quote is not from AuH20 (Barry Goldwater to those from Rio Linda) but from Mark Twain ( Samuel Clemmens to the same crowd).
Actually, Stevens said he concurred only because of precedent. His remarks that the constitutionality of the death penalty can and should be heavily debated now can hardly be considered a side note.
But then so did the "Hanging Judge" for Oklahoma, they just both respected the fact that the law was not theirs to make, only to enforce.
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Slapping down Wickard and slapping down the hippies, he picked slapping down the hippies.
Man is free at the moment he wishes to be. --Voltaire
Scalia has soured for me.
Give me 9 Thomases and I'd be a happy camper.
I'd settle for 2, though.
Man is free at the moment he wishes to be. --Voltaire
Raich was a horrible disappointment. Thomas is the man, but I'd still more than settle for 9 Scalias.
So you disagree with ONE DECISION and thusly are "soured" on him?
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
Yeah, I know.
"Other justices would be worse!"
Man is free at the moment he wishes to be. --Voltaire
Dude, even Bork doesn't advocate overturning some of the commerce clause stuff. I'm not sure if he favors overturning Wickard or not, but it's hardly something worth getting worked up over.
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
Isn't my yardstick for Justices.
Thomas has proven that it's possible to have a Strict Constructionist on the bench. What about Gonzales v. Oregon, you ask? Dude. That dissent was not a swing vote and was actually his hitting the other justices over the head with their Raich votes.
Man is free at the moment he wishes to be. --Voltaire
I was thorooughly disappointed in the Raich case as well, but then again, we've hashed out the absurdity of the drug war on other thread. But its alwasy nice to see that libertarians can agree every now and then.
"Extremism in the defense of liberty is no vice.Let me remind you also that moderation in the pursuit of justice is no virtue."-Barry Goldwater
Rudy/Romney for VP-because someone's got to punch the hippies.
What the heck are you talking about?
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
I know what the 9th Amendment is. I know who Dennis DeConcini is. I still don't know what "inkblot" has to do with Bork.
Please, give me a paragraph summary or something, or else I'm just going to assume you're taking a gratuitous slap at a good, aging man who deserves better.
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
Dennis DeConcini asked Bork what the Ninth Amendment really meant.
Bork made an analogy to an amendment that said "Congress shall make no ..." and the rest was covered by by an inkblot and how it was not the job of the justices to guess what the inkblot covered.
Since then, there has been a tendency for those who argue for more Federal Power to refer to the Ninth Amendment as an "inkblot".
Man is free at the moment he wishes to be. --Voltaire
in the SCOTUS, but Scalia is still a great man and justice. I would be thrilled to have a few more of him.
It is not a little ironic—and telling—that lethal injection,
hailed just a few years ago as the humane alternative
in light of which every other method of execution was
deemed an unconstitutional relic of the past, is the subject
of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected. And it is obvious that,for some who oppose capital punishment on policy grounds, the only acceptable end point of the evolution is for this Court, in an exercise of raw judicial power unsupported by the text or history of the Constitution, or even by a contemporary moral consensus, to strike down the death penalty as cruel and unusual in all circumstances. In the meantime, though, the next best option for those seeking to abolish the death penalty is to embroil the States in never-ending litigation concerning the adequacy of their execution procedures.
"A man does what he can and endures what he must."
Ouch. That's quite a bitch slap from Thomas. And rightly so.
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
Thomas went straight to the heart of the reasons behind the organized support for this appeal.
"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations
To be sentenced to death, one must really have to do something exceptionally cruel and inhumane to another human to warrant this. Knowing that, Ginsburg's particular attention to knowing whether prisoners are suffering between the first and second shots boggles my mind compared to how their victims suffered.
"First, Kentucky’s use of pancuronium bromide to paralyze
the inmate means he will not be able to scream after
the second drug is injected, no matter how much pain he is
experiencing."
The opinion states that there are trained professionals that work in every way possible to ensure the lack of suffering endured by the prisoner, they make sure that the prisoner is indeed unconscious by touching them, talking to them, etc., but it's clear that she isn't interested in that, just interested in scrapping the death penalty in its entirety.
Before you get to heaven, you must go through hell, which in my case is the People's Republic of Massachusetts.
Freedom of Religion not Freedom from Religion
Can judges be rock stars? I'm starting to believe it.
And the decision itself is apt illustration of why conservatives are so locked into the issues regarding judicial nominations. Why conservatives...
-- went nuts over the Harriet Miers nomination
-- partied naked (in our minds) over the Alito nomination
-- believe the Dem obstructionism inre nominations was and remains so odious
-- objected strenuously to the under-busing of Manuel Miranda, after he revealed patently unethical and probably illegal behavior on the part of Senate Democrats
-- and let's not even discuss G14.
Scalia is the man!
Kill the terrorists
Protect the borders
Punch the hippies -- Frank J
And both came out strong.
If only the USSC of the early 1970's had that kind of integrity.
Scalia is not a "strict constructionist." For all the great work President Bush has done in appointing Roberts and Alito to the Court (not to mention other Art. III judges), he has popularized the use of the term "strict constructionist."
Scalia has himself rejected use of that term. See his book, A Matter of Interpretation. He, and Thomas, are original meaning originalists. Strict constructionism is far more limiting than originalism.
I struggle to think of a true strict constructionist justice...perhaps Hugo Black with the First Amendment?
But I myself got tired of picking nits with the guy who has "nucular" in his working vocabulary. I think that unfortunately "strict constructionist" came to be the common-usage term for all of varieties of those judiciary types who defer to the Constitution.
I myself use the term Constitutionalist for the general case.
Kill the terrorists
Protect the borders
Punch the hippies -- Frank J
I like your term better than either of the others, but I suppose it's less well-defined than they are. If Scalia had coined "Constitutionalist" instead of "originalist," it probably would have superseded "strict constructionist."
Too bad you didn't edit his book.
"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations
The only downside of this opinion is that Roberts and Alito didn't join Scalia and Thomas's opinions. That is a little troublesome since Scalia and Thomas are correct (they basically said any form of the death penalty that does not result in torture is constitutional).
However, my best guess is, based on McCain's history and things he's said, the odds of us getting a Scalia or Thomas from him are only very, very slightly above zero. The odds of us getting a Kennedy or O'Connor are probably above 50 percent, and the odds of getting a Souter or worse, probably one in 4, with the rest falling somewhere in the Roberts, Alito range. Note, I don't think he'll nominate a Souter on purpose, but on average way too many Republican nominees go bad to assume anything else.
Now, this is certainly better than the odds of getting any of those from Clinton or Obama, but I think you overstate things somewhat with the assumption that under McCain we'd get more Scalias.
McCain faces. Because even W wouldn't have appointed Roberts or Alito with 55 Ds and no Alito with 50 Ds.
However, remember that McCain objected to the Souter nomination because he believed it was important to have a track record to see how a judge made decisions. He was very anti-stealth nominee. And he supported Bork, Thomas, Roberts and Alito.
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and defends them based on the Kelo decision.
I think the focus should be on strict constructionists fighting abuse of eminent domain as in Kelo. I don't think liberals can get much traction fillibustering judges who want to follow the written constitution to keep developers from taking your home away from you.
Judicial activists put all our rights in danger, including our right to own our homes.
to own property, there are no rights!
Good point. The property tax is the most onerous tax of all, because it taxes the same item of personal many times over. Estate and inheritance taxes only hit the same wealth for a second time--property taxes can exceed 100% over time.
"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations
I agree with your point, but your analogy is silly. That's like saying you don't own your body because if you put drugs in it the Government will arrest you.
That said, I agree that property taxes are the worst kinds of taxes. You shouldn't be forced to be part of the system. If you want to sit on your own piece of land and do nothing else for the rest of your life, you shouldn't be taxed on that.
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
"A big bowl of crybaby soup." Hilarious.
"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations
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"One man with courage makes a majority." - Andrew Jackson
both appointed by Republicans. I voted for Republicans because of the courts and got them both. I also voted for a another Republican and got Justice Souter. Never forget, 7 of the 9 current justices were appointed by Republicans. And there is no guarantee that the maverick Senator McCain will appoint more Justices like Justice Scalia.
"I would rather have clean government than one where quote first amendment rights are respected..."
John McCain at http://www.redstate.com/story/2006/4/29/111841/988.
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So that "Maverick" Reagan obviously was not worth your vote, since he appointed only 1 good judge out of 3.
And the same guy who appointed Souter also appointed Thomas. And the same person who got elected ended up putting both Rehnquist and Stephens on the bench.
In the meantime, what good SC judges did any Democrat pick?
"I ain't never votin' fo another Democrat so long as I can draw breath! I'll vote for a dog first!" - Leola Thomas
His opinion that the constitutionality of the death penalty ought to be reconsidered is not a central part of his argument but rather a side note. The only dissenters were Ginsburg and Souter.