[posted by Justin Levine]
DRJ is on the case in timely fashion, but do yourself a favor – don’t just read the news accounts of the Baze opinion. Read the entire concurrence by Antonin Scalia [starting on page 57 of this PDF document]. Scalia unloads on Justice Stevens and gives him the biggest ass-ripping since the one he gave to Sandra Day O’Connor in Planned Parenthood v. Casey.
It is decisions like this that make it quite obvious that Scalia’s critics will never get the better of him. His reasoning is just too solid – forcing his detractors to embrace positions that contradict fundamental
tenants tenets of both democracy and the English language.
Here is but a small taste –
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.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536 U. S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of he death penalty” is unconstitutional. Ante, at 17 (emphasis added).
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 he 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.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is delegated to a footnote. Ante, at 10, n. 13. The experience fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is JUSTICE STEVENS’ experience that reigns over all.
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Well done Nino!
Kudos to Justice Thomas as well, whose concurrence I find much more persuasive than Chief Justice Robert’s plurality opinion. It starts of page 65 of the PDF document.