Scalia, the Court, and the End of the Death Penalty

Justice Scalia made news last week for his remarks during an appearance at Rhodes College.  In addition to expressing in his characteristically blunt way his frustration with the Court’s same-sex marriage opinion from last term, he predicted that the Court was on its way to striking down the death penalty.  The prediction got a good deal of attention, with death penalty opponents hoping that Justice Scalia’s predictive powers proved as accurate in this case as they did when he predicted over a decade ago the demise of prohibitions on same-sex marriage.  

Scalia, according to widely noted tweets by Jennifer Pignolet of the Memphis Commercial Appeal, who was covering the Justice’s speech, also suggested that four of his colleagues were ready to strike down the death penalty.  This nugget of information sparked a flurry of speculation in the Court-watching community.  Who were these four justices?  Justice Breyer wrote a dissenting in last terms’ review of Oklahoma’s lethal injection protocol, Glossip v. Gross, in which he argued at length for why he believed the death penalty may violate the Eighth Amendment’s prohibition on “cruel and unusual punishment.”  But only Justice Ginsburg signed on this opinion.  So where does Scalia get his four from?  Justices Sotomayor and Kagan dissented in Glossip, and they expressed concerns with the administration of the death penalty in Oklahoma and elsewhere, but they chose not to join Breyer’s bombshell opinion.  Might Scalia be assuming that Justice Kennedy could be leaning in this direction?  His jurisprudence, well on display in his same-sex marriage opinion, would seem to make him open to the kinds of arguments death penalty opponents offer, and he has written several major opinions on the death penalty and other Eighth Amendment issues.  Regardless of who exactly Scalia might be been talking about, why was he even talking about where other justices were on this issue if they had not chosen to lay out their position in a Court opinion?  Scalia’s comments appeared to a violate a basic tenet of Supreme Court judicial ethics: the justices are not supposed to talk about what happens behind the scenes at the Court.

In the end, this was a bunch of sound and fury over nothing.  Scalia did not say that four of his current colleagues are ready to strike down the death penalty.  What he said, as Pignolet of the Commercial Appeal reported in a follow-up article, was the following: “I sat with three colleagues who thought the death penalty is unconstitutional … I sat with three colleagues, and there is now a fourth — Justice Breyer has announced that he thinks the death penalty is unconstitutional.”  This quotation clearly indicates that Scalia was looking backwards in time, to colleagues he sat with, not to his colleagues on the current Court.  He was not talking about Sotomayor or Kagan or Kennedy.  He was talking about William Brennan, Thurgood Marshall, and Harry Blackmun, each of whom denounced the death penalty as unconstitutional while sitting on the Court.  In talking about his four anti-death penalty colleagues, Scalia was not saying anything we didn’t already know.

The moral of the story?  Tweets are a lousy way to get our coverage of public events.  This is particularly true when the source is someone who is not a regular reporter on the law or the Supreme Court.  And this misreported story would never have happened if Justice Scalia allowed recordings of his remarks.  One sure outcome of all this is that it will only reinforce the Justice’s already low opinion of press coverage of his work.

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