Supreme Court Justice Antonin Scalia’s comments last week on the death penalty’s future in the United States grabbed more than a few headlines, and it could signal a future where America joins a majority of nations that outlaw capital punishment.
Scalia is one of the most-vocal death penalty supporters on the Supreme Court, but he has publicly doubted the course of capital punishment cases in recent months.
In June, Scalia wrote a strong concurrence in Glossip v. Gross, a case about lethal injection protocols. He was upset with a dissent from Justice Stephen Breyer (with Justice Ruth Bader Ginsburg joining) claiming that the death penalty was unconstitutional under the Constitution’s Eight Amendment prohibition of cruel and unusual punishments.
“His argument is full of internal contradictions and (it must be said) gobbledy-gook,” Scalia said about Breyer. “Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide,” Scalia argued.
But last week, in a speech at the University of Minnesota, people in the audience heard a candid Scalia speak about the death penalty’s future in America.
Scalia said that the recent death penalty cases decided at the Supreme Court have made it "practically impossible to impose [the death penalty] but we have not formally held it to be unconstitutional” and he also said "it wouldn't surprise me if it did" become a thing of past in America.
Scalia’s words have weight and court observers remember similar comments the Justice made about the future of same-sex marriage bans in 2003, more than a decade before the Court outlawed the bans this June.
In the landmark Lawrence v. Texas case, Scalia asked, “What justification could there possibly be for denying the benefits of marriage to homosexual couples?” as he questioned the logic used by Justice Anthony Kennedy in overturning a Texas statute that made it a crime for two persons of the same sex to engage in intimate sexual conduct
If Justice Scalia is prescient, and the death penalty is held unconstitutional or becomes impossible to impose, the United States would join a majority of global nations that don’t use capital punishment.
In his Glossip opinion, Justice Breyer noted that only 22 countries carried out executions in 2013, citing data from the International Commission Against Death Penalty Review.
“I note, however, that many nations—indeed, 95 of the 193 members of the United Nations—have formally abolished the death penalty and an additional 42 have abolished it in practice,” Breyer wrote.
But important exceptions remain. China, Iran, Saudi Arabia and Iraq performed more executions than the United States in 2014.
The issue of the United States executions received attention last month, when Pope Francis visited the east coast of the United States and told Congress that the death penalty should be abolished.
“I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes,” Francis said in a speech at a joint meeting of the House and Senate, with several Supreme Court Justices also in attendance.
In the current term, the Supreme Court will hear at least three cases related to the Eight Amendment and procedures related to capital cases. And in the arguments heard in court so far, the deep division in the court over the issue was very public.
It's not expected the Court would rule on the death penalty's fate in the near future, but the issues of the Eighth Amendment and capital punishment will undoubtedly be among the most-discussed topics of the Court's current term.
Scott Bomboy is the editor in chief of the National Constitution Center.
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