US Supreme Court Justice Scalia on
capital punishment: "Death is no big deal"
By Kate Randall
5 July 2002
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Recent rulings by the US Supreme Court on the death penalty have
focused attention on the high court’s attitude toward capital
punishment—a practice still upheld by 38 US states. In a 6-3 decision
June 20, the Court ruled that executing the mentally retarded is a violation
of the Constitution’s Eighth Amendment ban on “cruel and unusual
punishment.”
The decision incurred the ire of the three dissenting justices—Chief
Justice William Rehnquist and Justices Antonin Scalia and Clarence
Thomas, all known for their extreme-right views—who denounced the
Court’s majority for caving in to international and domestic public opinion
opposing execution of the mentally retarded. In his dissenting opinion,
Scalia argued that such individuals should not escape execution because
“deservedness of the most severe retribution [the death penalty],
depends not merely (if at all) upon the mental capacity of the criminal ...
but also upon the depravity of the crime.”
Reporting on the June 20 ruling, the British Guardian newspaper drew
attention to remarks made earlier this year by Justice Scalia, which cast
further light on the deeply reactionary outlook underpinning his support
for the death penalty. Scalia spoke in January at the University of
Chicago at the Pew Forum on Religion and Public Life, appearing on a
panel with former Democratic Senator Paul Simon and Beth Wilkinson,
lead prosecutor in the government’s case against Timothy McVeigh. His
comments have been virtually blacked out in the American press.
Scalia cited the New Testament to claim that government “derives its
moral authority from God ... to execute wrath, including even wrath by
the sword, which is unmistakably a reference to the death penalty.” He
then made the following remarkable declaration:
“Indeed, it seems to me that the more Christian a country is, the less
likely it is to regard the death penalty as immoral. Abolition has taken its
firmest hold in post-Christian Europe and has least support in the
church-going United States. I attribute that to the fact that for the
believing Christian, death is no big deal.”
Scalia went on to attribute any Christian opposition to the death
penalty—including that of the Pope—to the “handiwork of Napoleon,
Hegel and Freud.”
“The post-Freudian secularist,” he remarked, “is most inclined to think
that people are what their history and circumstances have made them,
and there is little sense in assigning blame.” With these words the high
court judge indicated his own view that crime is not to be explained as a
phenomenon with social roots, but rather as the expression of the evil
character of individuals.
Scalia continued: “You want to have a fair death penalty? You kill; you
die. That’s fair. You wouldn’t have any of these problems about, you
know, you kill a white person, you kill a black person. You want to
make it fair? You kill; you die.”
“Does [the death penalty] constitute cruel and unusual punishment?”
Scalia asked. “The answer is no. It does not, even if you don’t allow
mitigating evidence in. I mean, my Court made up that requirement.... I
don’t think my Court is authorized to say, oh, it would be a good idea to
have every jury be able to consider mitigating evidence and grant mercy.
And, oh, it would be a good idea not to have mandatory death
penalties...”
Scalia not only reiterated his support for the death penalty, but called on
any judge who found the practice immoral to resign. “In my view,” he
said, “the choice for the judge who believes the death penalty to be
immoral is resignation rather than simply ignoring duly enacted
constitutional laws and sabotaging the death penalty.”
With characteristic cynicism, Scalia quipped, “I am happy to have
reached that conclusion [that the death penalty is not immoral] because I
like my job and would rather not resign.”
In response to a question from the audience at the Chicago forum, Scalia
espoused the following unconstitutional standpoint on the relationship of
church and state: “You’re talking about whether the religious viewpoint
should have a role in the legislative and political process,” he said. “Of
course it should. It always has in this country.”
He went on to claim, “I don’t think any of my religious views have
anything to do with how I do my job as a judge.” His vote last week for
the majority in the Supreme Court decision authorizing vouchers for
religious schools, however, demonstrates that his promotion of religion is
an integral part of his anti-democratic political agenda.
Scalia’s appearance at the Chicago forum was remarkable on three
counts. First, his shameless and brutal contempt for human life; second,
his rejection of basic democratic and constitutional principles; and third,
the lack of any challenge to his reactionary rant in the press or among
what passes for the liberal establishment in America. Why is there no
outrage?
It is instructive to contrast the non-reaction to Scalia’s comments to the
treatment of Associate Justice William O. Douglas, who served on the
high court for 36 years, beginning in 1939. Douglas, long known for his
liberal views, faced impeachment charges in 1952 when he granted a stay
of execution to Julius and Ethel Rosenberg. In 1970, then-House
Minority Leader Gerald R. Ford led another unsuccessful impeachment
effort against Douglas, attacking him for his encouragement of political
dissent and his championing of civil rights and anti-war causes.
But Scalia’s remarks are not even reported, let alone opposed. The
acceptance of his reactionary drivel as a reasonable outlook is one more
indication of the absence of any constituency within the political
establishment for the defense of humanist principles and democratic
rights. |
