Am I the only one who caught the glaring error in the very first paragraph (and sentence) of Justice Breyer's concurrence in the judgment?
| .. | Assuming the lawfulness of the death penalty itself, petitioners argue that Kentucky's method of execution, lethal injection, nonetheless constitutes a constitutionally forbidden, "cruel and usual [sic] punishmen[t]." |
Oh well; it is a slip opinion.
Anyway, the most remarkable opinion in this case was easily that of Justice Stevens. It is remarkable not merely for its conclusion that a textually contemplated punishment is always and inherently illegal (despite an unbroken national tradition to the contrary). It is all the more remarkable for its cavalier, philosopher-king treatment of the matter. He displays little interest in distinguishing constitutional interpretation from raw policy-making.
Justice Scalia's (somewhat intemperate) response is crushing:
| .. | 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.' " 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 the 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 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." Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. 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." Ante, at 11. It is JUSTICE STEVENS' experience that reigns over all. |
Touche.
