Justice Antonin Scalia

  • July 1, 2015
    Guest Post

    by Brandon L. Garrett, Professor of Law at the University of Virginia, and Lee KovarskyProfessor of Law at the University of Maryland Carey School of Law.

    *This post originally appeared at The Huffington Post.

    Monday, the Supreme Court Justices delivered their oral opinion summaries in the Term's high-profile death penalty decision, Glossip v. Gross. Rather than reading from his concurring opinion or from a prepared statement, Justice Antonin Scalia -- still frazzled from release of the same-sex marriage cases -- appeared to be improvising. He accused Justice Stephen Breyer and Justice Ruth Bader Ginsburg of expressing personal "policy preferences," and added that the "two justices are willing to kill the death penalty outright rather than just pecking it to death." Why the defensiveness and outrage?

    Glossip was a 5-4 victory for death penalty states, which retained leeway to use new and untested lethal-injection "cocktails." Scalia was part of the majority but he sounded strangely like he was uttering last words. Justice Samuel Alito's presentation of the majority opinion was also unusually defensive and hostile to the dissenters. Justice Alito insists it is "settled that the death penalty is constitutional." In a career-defining dissent, Justice Breyer showed just how unsettled the American death penalty remains.

    The precise legal question in Glossip was whether states could use midazolam as the anesthetic in a three-drug legal-injection cocktail. For years, states used sodium thiopental, until suppliers stopped selling it for use in executions. Many states turned to pentobarbital, which also became difficult to obtain. Oklahoma turned to midazolam, considered more of an anti-anxiety medication than an anesthetic. After several "botched" executions, the Supreme Court agreed to hear whether improvements to Oklahoma's cocktail -- including a 400 percent increase the midazolam dosage -- satisfied the Eighth Amendment. Holding that it did, the Court seemed to announce a rule that an execution could not be Cruel and Unusual under the Eighth Amendment unless there is a "known and available alternative method of execution that entails a lesser risk of pain." Justice Sotomayor dissented, calling this a "surreal" endorsement of inhumane "human experimentation."

    Justice Breyer did more. Joined by Justice Ginsburg, he wrote a dissent arguing that the death penalty is flat out unconstitutional, and he characteristically loaded his opinion with empirical data. In doing so, Breyer and Ginsburg joined the ranks of predecessors such as John Paul Stevens and Harry Blackmun who, in their later years on the Court, declared they no longer believed that there exists a constitutional way to administer capital sentences. In 1994, an 85 year-old Blackmun penned a memorable single-Justice dissent swearing off his participation in capital process: "From this day forward, I no longer shall tinker with the machinery of death." For Justices Breyer and Ginsburg, the death penalty cannot escape a dilemma's horns -- the procedural protections necessary to make the penalty reliable mean that the process takes so long that it no longer serves its retributive or deterrent purposes.

  • February 17, 2015

    by Caroline Cox

    At MSNBC, Irin Carmon discusses her recent interview with Justice Ruth Bader Ginsburg that touched on abortion rights, race, and politics.

    Julia Preston of The New York Times reports that a federal judge has ordered a halt on President Barack Obama’s executive actions on immigration.

    At The Washington Post, Linda Hirshman argues that Judge Roy Moore actually helped the fight for same-sex marriage through his vocal opposition.

    At Hamilton & Griffin on Rights, Leslie C. Griffin writes that a new case involving a church arguing it is entitled to worship on public school grounds confuses the line between worship and speech.

    Nina Totenberg of NPR reports on an event with Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg that she moderated.

  • February 2, 2015

    by Caroline Cox

    Geoffrey R. Stone writes in the Huffington Post about campus sexual assault and argues for a more thoughtful approach from universities “to keep their students safe and to ensure that they can live and learn in an environment free from sexual violence.”

    At The Week, Andrew Cohen considers the lessons of Georgia’s recent decision to execute a developmentally disabled man.

    In The Atlantic, Kent Greenfield asserts that corporations should shoulder greater responsibilities if they are to be considered people under the law.

    Cristian Farias argues in The New Republic that Justice Scalia could be the decisive vote on the Affordable Care Act.

    In Slate, Jamelle Bouie contends that public apathy has led to significant criminal justice reform, but larger support is needed to tackle the biggest problems. 

  • January 28, 2015

    by Caroline Cox

    In The New York Times, Alan Blinder reports that Georgia completed the execution of Warren Hill, a man with a lifelong intellectual disability. The Supreme Court denied a request to stay Hill’s execution earlier this week.

    Richard Kreitner argues at The Nation that courts should begin to enforce Section 2 of the Fourteenth Amendment in order to save the right to vote.

    Sahil Kapur discusses in Talking Points Memo how the Obama administration is using a 2012 dissent by Justice Scalia in the new Affordable Care Act case.

    At Lyle Denniston Law News, Lyle Denniston writes that an Alabama state judge has vowed resistance to the “tyranny” of same-sex marriage rulings.

  • January 6, 2015

    by Caroline Cox

    Nancy Leong writes in the Huffington Post about how the death penalty has become both rarer and more problematic.

    In The Washington Post, Robert Barnes reports on the start of same-sex marriages in Florida and the Supreme Court’s meeting on the issue.

    Jenny Kutner reports in Salon on the rising number of abortion restrictions states enacted in the last four years.

    In The Nation, Katrina vanden Heuvel examines Justice Antonin Scalia’s recent comments on torture and the Eighth Amendment.

    Adam Liptak writes in The New York Times about an article Justice Elena Kagan wrote 19 years ago and its potential influence on a Supreme Court case.