Scalia v. Souter On The Death Penalty

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5 Responses

  1. Anonymous says:

    I agree with much that is said here. But after re-reading the concurrence, I think Scalia’s spat with Justice Stevens is more significant, at least for those of us who are Federal Courts junkies. Scalia demolishes Stevens’ theory of rachet-up review. I can’t tell you how many times in law school I had to hear about rachet-up review, and from law professors who had clerked on the Supreme Court. But Scalia takes a sledgehammer to it.

  2. Simon says:

    Anyone else notice that former CC guest Prof. Waters got a citation in n.3 of Scalia’s concurrence?

    I think Scalia maybe fears that Souter is ramping up to a Callins v. Collins-style declaration; from the conservative perspective, there is an ongoing attempt by liberals to abolish the death penalty by whatever means, and when you don’t think the Constitution forbids the death penalty, sometimes the anger boils over, as it certainly did here. Hence, Scalia’s warning “that the dissenters’ encumbering of the death penalty in other cases, with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it” should be understood as being less a project of making the death penalty less capricious, but rather, to inflict on it the death of a thousand cuts. I think Scalia sees what the dissenters are up to as being a project to hog-tie states to such an extent that it becomes practically impossible to execute someone, no doubt in the hope that some states will conclude that it simply isn’t worth the time, trouble and effort and abolish it; that is, abolition by the back door.

  3. Anono says:

    Why did Scalia explode?

    Isn’t that obvious? Because he thought that the dissent was citing crappy and overwrought studies.

  4. karl says:


    What crappy and overwrought studies”? Are you denying capital DNA exonerations? Are you denying that we have come within minutes of executing clearly innocent men even after they had exhausted all their normal avenues of appeal? Are you denying the press has identified four cases (all in which no DNA was present), Carlos Deluna, Cameron Todd Willingham and Ruben Cantu in Texas, and Larry Griffin in Missouri, in just the last few months where we killed someone only to find out there exists strong evidence of probable innocence? Or are the “studies” “crappy and overwrought” because they don’t fit your narrow ideological agenda.

    I think what I loved most in Scalio’s opinion isnt that it was factually incorrect (such as the numbers on death row or the number executed in this country), what I loved most is that no one else dared to sign on to his opinion.

  5. kim69 says:

    the effect of the death penalty is affect our sestym condems,many people have given a sentence called death penalty.. and were not sure if the suspect have done his crime,because some people have been mistaken identity… and were filipinos believe in haka-haka.. and death penalty sentence is immoral to our comandments in god..datzz all..