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.



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