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Yet again, Antonin Scalia has given us reason not to trust the court he sits on. When he scolded the Supreme Court in his dissent to its ruling that sanctioned same-sex marriage, I could understand it. His side had lost, and what explanation for that could there be other than that the winners were unfit to judge? And so he wrote, "To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation."
But that was last week. On Monday the court ruled 5 to 4 that the death-penalty drug midazolam is constitutional. Scalia was one of the five, so what could his problem be? Alas, Justice Stephen Breyer suggested in his dissent that it might be time for the court to revisit the larger question of whether capital punishment itself is unconstitutional. Sensing this notion might find some favor with patrician justices of a liberal stripe, Scalia wrote to stop it dead in its tracks.
Scalia—whom I compared in my last post to an op-ed columnist who loves the sound of his own voice—always makes me stop and think. Sometimes what I think is, how does he have the nerve! "Justice Breyer does not just reject the death penalty, he rejects the Enlightenment," Scalia asserted with dumbfounding chutzpah, knowing full well that's what the world says of him. Standards of retribution must be left to "the People," said Scalia; elitist judges are unfit to draw them up:
We federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans' everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem "significant" reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate.
As I said, he always makes me think. In this case I thought about the federal judge Joan Lefkow, whose husband and mother were murdered in 2005 in her house in Edgewater. Lefkow subsequently told a Senate committee that she was "the fourth judge since 1978 who has been the victim of assassination" and recommended several measures to make judges feel more secure. And I thought that whether or not judges are confronted with the threat of violence, there are other things they certainly are not confronted with, such as the loss of health care. When Scalia dissented last week from the opinion that sustained Obamacare as is, did he intend to point out to the 6.4 million Americans who almost lost their health-care subsidies that much as he'd like to feel their pain he couldn't possibly? It must have been an oversight.
Scalia also made me think when he accused Breyer of "creative arithmetic." Breyer had argued that capital punishment is becoming ever more "unusual," with 30 states having formally abolished it or not executed anyone in more than eight years, and with only three states—Texas, Florida, and Missouri—responsible for 28 of the 35 executions performed last year. Scalia didn't bite. Yes, states have abandoned the death penalty, he allowed, but that's "precisely because" (his italics) "suspect" judicial decisions have made it so expensive. So those states don't count. They want to kill but can't afford to. Scalia knows their hearts.
Scalia knows his stuff about creative arithmetic. I still remember his dissent from a 2002 Supreme Court decision making it unconstitutionally cruel for the states to execute mentally retarded convicts.
The Supreme Court, he snickered, "miraculously extracts a 'national consensus' . . . from the fact that 18 states—less than half (47 percent) of the 38 states that permit capital punishment (for whom the issue exists)—have very recently enacted legislation barring execution of the mentally retarded. How is it possible that agreement among 47 percent of the death penalty jurisdictions amounts to 'consensus'?"
Thirty of the 50 states didn't allow mentally retarded convicts to be executed, and Scalia turned that into a minority by postulating that the 12 states that didn't execute anybody (it's now up to 19, incidentally) didn't count. Was that creative or what!