Glossip v. Gross, the Supreme Court's latest encounter with the death penalty, confirms -- if any confirmation was needed -- how difficult an issue capital punishment is for the justices of the Court. The actual issue in the case was the constitutionality of a particular three-drug "protocol" used for execution by lethal injection. But the case also provoked several of the justices to a debate about the constitutionality of the death penalty itself, and I want to start with that.
Perhaps the most distressed of the justices is Scalia (whose separate opinion Justice Thomas joined). Scalia is so upset by the long dissent from Justice Breyer (with whom Justice Ginsburg concurred), in which Breyer suggested that the death penalty might in fact be unconstitutional in all applications, that he descends to insult. He declares that Breyer's opinion "is full of internal contradictions and (it must be said) gobbledy-gook." (Scalia, J., concurring, at 2.) While Scalia is known for epithets like this, this one is hard to defend: Breyer's opinion can certainly be criticized but it's a notably sober and thorough discussion.
Then, responding to Breyer's argument that the death penalty probably does not actually operate as a significant deterrent, Scalia argues that "[t]he suggestion that the incremental deterrent effect of capital punishment does not seem 'significant' reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others" (id. at 5), those who are more exposed to danger than the members of the federal judiciary are. That's an assertion not only of elitism - a familiar criticism from Scalia - but of a malign indifference to the needs of others.
Then, in the next paragraph, Scalia addresses Breyer's argument that the death penalty may be unconstitutional because of the long delays between sentencing and actual execution. Scalia, not unreasonably, blames this delay on the Court's own complex death penalty jurisprudence, developed over past decades. Then he writes: "Indeed, for the past two decades, JUSTICE BREYER [the capitals aren't for special emphasis - they're a Supreme Court convention] has been the Drum Major in this parade." (Id. at 6.)
Scalia, in short, finds Breyer's dissent just unbearable - and his short dissent makes that clear in ways that aren't just sharp but quite personal.
The other justices don't write that way, but as I'll try to show in coming posts, many of them are distressed too.