Justice Scalia finds out that if you live by the sword, you die by the sword

gpk2F72Please read Callins v. Collins, Director, Texas Department of Criminal Justice, Institutional Division, 510 U.S. 1141 (1994) that denied cert. in a death penalty case. In that case, Justice Blackmun uttered these famous words, “From this day forward, I no longer shall tinker with the machinery of death.” That prompted Justice Scalia to skewer Blackmun with these words,

Convictions in opposition to the death penalty are often passionate and deeply held. That would be no excuse for reading them into a Constitution that does not contain them, even if they represented the convictions of a majority of Americans. Much less is there any excuse for using that course to thrust a minority’s views upon the people. Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us — the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death-by-injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which JUSTICE BLACKMUN did not select as the vehicle for his announcement that the death penalty is always unconstitutionalfor example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, cert. pending, No. 93-7200. How enviable a quiet death by lethal injection compared with that! If the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual, and unhistorical contradictions within “the Court’s Eighth Amendment jurisprudence” should not prevent them.

Id. (Emphasis added by Kopf).

The Supreme Court later denied cert. in the McCollum case relied upon by Justice Scalia to poke fun at Blackmun. McCollum v. North Carolina, 93-7200 (June 30, 1994). Now read State of Carolina v.  Henry Lee McCollum, General Court of Justice, Superior Court Division, Robeson Co. File No. 83 CRS506-07, et al (September 2, 2014) (releasing McCollum because DNA evidence established his innocence) (PDF will be generated).

With this preparation, next read Leonard Pitts, Jr.: What do you think of the death penalty now, Justice Scalia?, Miami Herald (June 13, 2015).* Put simply, Pitts guts Scalia.

The essay concludes this way:

The argument against the death penalty will never have the visceral, immediate emotionalism of the argument in favor. It does not satisfy that instinctive human need to make somebody pay — now! — when something bad has been done. Rather, it turns on quieter concerns, issues of inherent racial, class, geographic and gender bias, issues of corner-cutting cops and ineffective counsel, and issues of irrevocability, the fact that, once imposed, death cannot be undone.

Those issues were easy for you to ignore in mocking Blackmun. They are always easy to ignore, right up until the moment they are not.

This is one of those moments, sir, and it raises a simple and obvious question to which one would hope you feel honor-bound to respond. In 1994, you used this case as a symbol of why we need the death penalty.

What do you think it symbolizes now?

Considering the title to this post, and intending to mix my metaphors, Scalia has been hoisted by his own petard!


*I tip my hat again to the incredible resource that is How Appealing.


I did not write this post primarily to comment on the death penalty. On the contrary, I wrote this post as a comment about legal writing and legal argumentation. In my opinion, Justice Scalia’s concurrence blew poor Justice Blackmun’s fretful dissent out of the water, but Scalia went too far and that hubris has now come back to bite him in the butt. An argument constructed around an analogous set of facts can be very powerful, and it can also blow up in your face if the facts as you understood them later turn out to be wrong.



27 responses

  1. Since DNA evidence is always used now and thus we can rule out executing the innocent (and add in the influence of CSI on juries), can we just move on and start executing murderers?

    There is zero doubt that every single murderer on Nebraska’s death row is unquestionably guilty. The US Bank in Norfolk case is a perfect example. Good police work, solid evidence and affirmed on appeal in a very lengthy decision.

  2. Okay. But substitute the Chesire, Connecticut murders for the North Carolina case. I think Justice Scalia’s mordant prose makes a point. Lethal injection, even electrocution, is a far better end than what happened to Dr. Petite entire family. Maybe there are cases that scream out for vengeance.

    Very hard. I’m not a fan of capital punishment, but there are circumstances where it seems to be necessary if human life is held to be of any value. I’m starting to sound like my father more and more as I get older.

  3. Judge:
    I’m not so sure. Justice Scalia made several valuable points in citing to the McCollum case. What happened two decades later doesn’t necessarily change the points he made. The death penalty will always engender strong feelings on both sides of the argument, even amongst Supreme Court justices. The 1994 hissy fit between Justices Blackmun and Scalia over the death penalty, and its sequelae, is just the same societal dialogue writ small.

  4. Yet one more case showing the futility, nay criminality, of the death penalty. We are at least half the time wrong in our guilty verdicts. Killing the innocent doesn’t do justice to anyone. With how many states now banning the death penalty surely we should all say, like Justice Blackmun, it’s time to end this medieval experiment.

  5. Given the fidelity members of Opus Dei are supposed to owe the magisterium does Scalia’s rather pornographic passion for the death penalty refute the rumor that he is a member? His enthusiasm for the death penalty goes beyond a role based belief it is Constitutional to a rather Freudian desire to impose death. Maybe he is really a NE Republican.

  6. The percentage of guilty pleas is very high because at the misdemeanor level often the least costly option is to plead guilty and move on. At the felony level plea bargains are an important factor. If the prosecutor has a weak case they can dismiss the charge. The system is heavily weighted in favor of the prosecution. However, that does not mean that a guilty verdict is wrong half the time. The criminal justice system has always malfunctioned, but I doubt that it has ever been as bad as you claim.

  7. Judge, the optimism you display in mentioning the death penalty and not expecting discussion of its merits displays a youthful spirit that I envy. I am not a fan of Scalia’s overblown writing style which is a cross between high school debater and class room bully , two clubs to which I sadly claim membership. A bad translation of a liberetto seems to be his model.

  8. Judge,

    While the McCollum case is certainly powerful evidence for those (myself included) who have strong opinions against the death penalty, I don’t think the discovery, 20 years later, that McCollum was innocent addresses Scalia’s main point – namely that despite whatever compelling arguments can be made for/against the law, those substantive arguments “would be no excuse for reading [a ban] into a Constitution that does not contain [one].” In one manner of thinking, the fact that McCollum was later found innocent serves to very strongly illustrate Scalia’s point – the question is one of constitutional interpretation – not of guilt or innocence, or right or wrong. In other words, to quote Scalia himself – “a lot of stuff that’s stupid is not unconstitutional.”

  9. Well, young lawyer, that’s sort of a good point and sort of not.

    Correct as far as it goes. But there is a lot of irony in having the facts wrong in the most fundamental way on the very example you use to make the point.

    Also, it’s important to remember that for Scalia and you and maybe me to some extent this is about a fine point of argumentation, but for Mr. McCollum it was literally a matter of life and death. You have to maintain objectivity, but at the same time when you have absolutely no experience actually being a lawyer who has represented people (like all the SCOTUS justices) you’ve got to have the humility to recognize that a lot of very important – or even dispositive – subtleties will elude you due to lack of experience.

    Anyway, I went into this episode earlier in the week, if you’re interested:


  10. repentinglawyer,

    I am not opposed to discussing the substance of death penalty cases (with the exception of cases or arguments related to the position Nebraska faces now given the repeal of the death penalty), I am truly more interested how judges write opinions. Like it or not, Scalia is regarded by a lot of objective legal writing experts as one of the best writers ever to sit on the Supreme Court. That’s why I found the subject of the post so fascinating.

    All the best.


  11. Young Lawyer,

    Excellent point. But it begs the question of why then Scalia used horribles to support his position. All the best.


  12. repentinglawyer,

    Having been accused of harboring an anti-catholic bias by a highly regarded law professor, e.g, here, I will let you speculate without any comment from me. I know. I’m a wuss.

    All the best.


  13. Judge I do not disagree that Scalia as justice and writer is much admired in certain dark and musty corners of the Academy, I disagree with the evaluation. Being weak of will I ignored you legitimate purpose and released the snark within.

  14. Judge I recall the professor’s comment, it was the last refuge of an idiot. I am probably unwise but I find harmless good fun in the politics of the American Catholic community.

  15. Asked and answered. See Scalia’s dissent in Michigan v. Bryant.

    It is the job of the judge to interpret the Constitution he has, as opposed to the one he would prefer. You judges are too quick to forget that when it serves your purposes, Judge Hercules.

    Yes, our court system is a joke. Yes, the error rate is high. But the fault is in our failure to put a merciful end to that barbaric and unjust practice. Changing that is above Justice Scalia’s pay grade, and in my fallible judgment, it ought to stay that way.

  16. First, Robert and Young Lawyer recognize what you should have.

    Second, you misused “hoisted on his own petard.” The McCollum case wasn’t his petard, proper constitutional analysis was.

    Third, someone did all those things. The fact that McCollum didn’t, doesn’t affect either Scalia’s constitutional argument or his point that terrible facts are on both sides of the issue, and may or may not affect the public’s support for for the death penalty..

    Finally, convicting the wrong person probably happened more in 1789 than now. Yet this fact of life did not deter the framers from including it in the Bill of Rights in the due process clause of the Fifth Amendment.

    However, none of this means that the McCollum case shouldn’t be used by legislatures to abolish the death penalty or seeks a constitutional amendment. Or that it should.

  17. Judge,

    I think a plausible – if perhaps mildly charitable – argument can be made that Scalia’s horribles serve to illustrate an alternate understanding of words “cruel and unusual” and were not intended to depict McCollum as a bad man who deserved what he got. Scalia chose not to focus on or condemn McCollum or his alleged co-actors, but instead concluded by comparing the brutality of that murder to the brutality of allegedly “cruel and unusual” capital punishment. Additionally, he concluded by returning to his main point – that whether or not it was pleasant or sensible, the people had made their choice in passing the law, and that, in his view, the text of the Constitution did not bar them, so far as they went.

    JMRJ, your point about experience is well taken, but I’m not sure I agree that the Constitution is best interpreted by reference to even very important practical subtleties. The law says what the law says, and I believe that there is a value to consistent application of that law over time, whether the law is convenient and morally justifiable or whether it is arbitrary and terribly unjust. Cutting corners with the Constitution by reading it not to say the things we don’t like or find inconvenient, even if we have a very good reason for not liking them, is, in my mind, not an appropriate substitute for the amendment process. Otherwise, I fear we might find ourselves returning to a government of men, and not of laws. Ultimately, I suppose that, in answer to the Judge’s “Who, Why and Title of the Blog” – I prefer the Umpire to Hercules.

  18. Anonymous,

    Re our fathers: Me too! In fact, when I look in the mirror each morning I am terrified that Dick, my dad, has returned just like the walking dead.

    Furthermore, you have perfectly captured my ambivalence about the death penalty. There are monsters out there. A strong argument can be made that killing them is both a practical and moral necessity.

    Does anyone really think that the Brit who cut off the heads of innocent journalists in the desert of the middle east and burned a young pilot alive should remain on this earth one more second. Or,think about whether this guy deserved to breath the air after his unspeakable deeds.

    Thanks for taking the time to write. All the best.


  19. I certainly agree that the law says what it says and that objectionable outcomes can result, and that personal judicial preferences don’t govern.

    Of course that wasn’t the point.

    How a judge comes down on a point of evidence, or the impact of a confession or whether, say, a criminal defendant was “prejudiced” by this or that ruling will probably vary substantially with the judge’s experience of such things, and of course his or her experience of such things will be very different depending on which side of the fence they were on as lawyers. There’s no getting away from it, and the consequences of appellate judges having similar and limited backgrounds are enormous.

    It would take a book to make that case solidly, and you sure don’t have to take my word for it, but you might file away the thought for future reference.

  20. Per the excerpt below from the recent Slate article “Why Is John Roberts Siding With the Supreme Court’s Liberals?” the more direct lesson where a death row inmate was subsequently exonerated by DNA evidence was the dissent of Chief Justice Roberts (joined of course by Scalia). And while the rate of proven wrongful convictions in death penalty cases is not 50%, the percentage is still shockingly high. One would think the evidence would generally be much more compelling and certain in death penalty cases than in typical criminal matters.

    “Roberts may also have learned a similar, valuable lesson from a far less familiar ruling: House v. Bell, from Roberts’ very first term on the court. Few remember the facts of this case—Paul House, a man sentenced to death, won the right to file a habeas petition in federal court—but you can bet Roberts will never forget it. Joined by Scalia and Thomas, Roberts wrote a partial dissent that contemptuously dismissed House’s claims of innocence.* To House’s contention that his scratches and bruises were from his construction work and a cat’s claws, Roberts derisively replied, “Scratches from a cat, indeed.” Several years later, however, prosecutors dropped all charges against House, who was exonerated by DNA evidence.”

  21. Um, well, your Honor, I don’t see many federal judges, esp. Supreme Court Justices, living by the sword and none dying by it; in fact, they rarely have to do much “fighting” to “live” at all. There is no (real) penalty societally-imposed for being mistaken, wrong or ignorant, even willfully so (and in fact, you have personally immunity even if you act with impure intentions). You may self-impose a “penalty” on yourselves (and hopefully, learn a lesson), but there are no “mandatory sentencing guidelines” because there is no sentence imposed. And that, I suspect, is the problem. What I, and most of us all, am unsure of is the answer.

    One thought does occur to me, though. Justice Scalia says he believes in God. If Scalia’s God is the God that I suspect Scalia thinks He is, the Justice might wish he had restrained himself a time or ten re: the whole “eye for an eye” shit because I don’t think Scalia’s God has the slightest interest in granting cert on the basis of human hubris. But I also suspect that his God will not have the slightest hesitation about acting upon that hubris, regardless of ACTUAL guilt or innocence, so that ought to make him feel better.

  22. “The McCollum case wasn’t his petard, proper constitutional analysis was.”

    Okay. So what role did the McCollum case play in his proper constitutional analysis? Why did he mention it at all? Why did he write the middle of that paragraph at all?

    Scalia can’t have it both ways. He can’t say that his job is just to interpret the Constitution, ruat caelum, and then turn around and give emotionally compelling facts to show why his interpretation is better policy.

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