Scalia’s Criminal Law Legacy: Eighth Amendment Edition

Before returning to the Sixth Amendment, I’ll turn to the Eighth Amendment, with a focus on Scalia’s death penalty jurisprudence.

The Eighth Amendment bars the government from imposing excessive fines, excessive bail, and “cruel and unusual punishments.” In the 1958 case Trop v. Dulles, 356 U.S. 86 (1958), Chief Justice Earl Warren established the modern jurisprudence of the Eighth Amendment, writing that its prohibition on “cruel and unusual punishments” is not static, but “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”

One string of post-Trop law prohibits specific punishments as applied to classes of offenders (e.g., no death penalty for juveniles) and classes of offenses (e.g., no death penalty for the crime of child rape). Until the Court’s 2010 decision in Graham v. Florida, 560 U.S. 48, holding that juveniles cannot be sentenced to life without parole for non-homicide offenses, the Court’s decisions in this area dealt almost exclusively with the death penalty. In the early 2000s, opponents of capital punishment won two major victories before the Supreme Court. As a result, the federal government and states can no longer execute persons who are intellectually disabled (Atkins v. Virginia, 536 U.S. 304 (2002)), or who were juveniles (i.e., under the age of 18) at the time of the crime (Roper v. Simmons, 543 U.S. 551 (2005)). Roper extended the holding of Thompson v. Oklahoma, 487 U.S. 815 (1988), which had outlawed the death penalty as a punishment for persons who committed a capital offense when under the age of 16.

Justice Scalia authored dissents in all three cases. He never expressly advocated for the death penalty—“I take no position on the desirability of the death penalty,” he once wrote—but Scalia’s feelings on that form of punishment are, I think, apparent (it’s safe to say he’d be “death-qualified” to sit on a capital jury). Nevertheless, his opinions also show that his votes had nothing to do with the appropriateness of the death penalty—and everything to do with who gets to decide how society punishes those convicted of the gravest offenses. In Scalia’s view, in almost all cases the people through their elected representatives, and not judges, should have the power to decide whether death is an appropriate punishment for particular classes of offenders or offenses. “By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?” he asked (rhetorically) in Roper.

Scalia grounded his position first in the text of the Constitution and the original meaning of the Eighth Amendment. As he wrote in Baze v. Rees, 553 U.S. 35 (2008),

[T]he very text of the document recognizes that the death penalty is a permissible legislative choice. The Fifth Amendment expressly requires a presentment or indictment of a grand jury to hold a person to answer for “a capital, or otherwise infamous crime,” and prohibits deprivation of “life” without due process of law. The same Congress that proposed the Eighth Amendment also enacted the Act of April 30, 1790, which made several offenses punishable by death.

Thus, Scalia rejected the prevailing view that federal judges could rely on “evolving standards of decency” to declare punishments unconstitutional. He rather believed that the Eighth Amendment’s meaning is static. In an interesting essay on the morality of capital punishment, which Scalia published in the journal First Things, he explained:

[The Eighth Amendment] means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse-thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today. There is plenty of room within this system for “evolving standards of decency,” but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish.

In any event, Scalia did not trust himself or his colleagues to gauge accurately society’s evolving standards. “The risk of assessing evolving standards,” he wrote in Thompson, “is that it is all too easy to believe that evolution has culminated in one’s own views.” His dissent in Atkins scolded, “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members,” before accusing the majority of fabricating a “national consensus” against execution of the intellectually disabled.

Causing Scalia to take even more umbrage was the Court’s reliance on the views of professional and religious groups, as well as the views of other developed countries. In Atkins he wrote that “the Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’ must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called ‘world community,’ and respondents to opinion polls. [T]he views of professional and religious organizations and the results of opinion polls are irrelevant. Equally irrelevant are the practices of the ‘world community,’ whose notions of justice are (thankfully) not always those of our people.”

Scalia’s opinions on the death penalty are frequently blistering and deal scathing criticism against colleagues who disagree with him. When I studied constitutional law, my professor made a point of contrasting Scalia’s dissent in Lawrence v. Texas (where the majority held that the Constitution protects homosexual relations) with Justice Rehnquist’s dissent in Roe v. Wade. “That’s how you write a dissent on a contentious issue,” she remarked, holding up Rehnquist’s less combative writing style as a model of persuasion. She thought Scalia’s derisive, dismissive tone made his opinions less persuasive. In a Los Angeles Times op-ed, renowned legal scholar Erwin Chemerinsky wrote that Scalia’s “nasty, sarcastic and personal” opinions were having a negative effect on a generation of law students and young lawyers. They were developing the habit, attributable to a steady diet of Scalia, of lacing their briefs with “derision and ad hominem barbs.” Chemerinsky concluded, “If legal professionals ignore Scalia’s meanness or—worse—pass around his insults at cocktail parties like Wildean witticisms, they’ll encourage a new generation of peevish, callous scoffers.” Scalia’s writing, however, is widely admired across the political spectrum. As Jeet Heer wrote in The New Republic (“Antonin Scalia Is the Supreme Court’s Greatest Writer”), months before the justice died, “Scalia is the foremost living practitioner of performative legal prose, a masterful writer who can make torts tarty and judgments jazzy.”

Chemerinsky’s and Heer’s sentiments both find expression in Scalia’s concurrence in Glossip v. Gross, 576 U. S. ___ (2015). Responding to Justice Breyer’s dissent, which called for the abolition of the death penalty under the Eighth Amendment, Justice Scalia crafted a short, punchy opinion with prose that is at once marvelous and intemperate. I’ll end with these selections:

Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11-month-old baby), come before this Court asking us to nullify their sentences as “cruel and unusual” under the Eighth Amendment. . . . The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good.


Even accepting JUSTICE BREYER’s rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook.


[W]hether the death penalty and life imprisonment constitute more-or-less equivalent retribution is a question far above the judiciary’s pay grade. Perhaps JUSTICE BREYER is more forgiving—or more enlightened—than those who, like Kant, believe that death is the only just punishment for taking a life. I would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough.


[W]e federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The 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. Let the People decide how much incremental deterrence is appropriate.


As JUSTICE BREYER concedes, for more than 160 years, capital sentences were carried out in an average of two years or less. But by 2014, he tells us, it took an average of 18 years to carry out a death sentence. What happened in the intervening years? Nothing other than the proliferation of labyrinthine restrictions on capital punishment, promulgated by this Court under an interpretation of the Eighth Amendment that empowered it to divine “the evolving standards of decency that mark the progress of a maturing society,”—a task for which we are eminently ill suited. Indeed, for the past two decades, JUSTICE BREYER has been the Drum Major in this parade. His invocation of the resultant delay as grounds for abolishing the death penalty calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan. Amplifying the surrealism of his argument, JUSTICE BREYER uses the fact that many States have abandoned capital punishment—have abandoned it precisely because of the costs those suspect decisions have imposed—to conclude that it is now “unusual.” (A caution to the reader: Do not use the creative arithmetic that JUSTICE BREYER employs in counting the number of States that use the death penalty when you prepare your next tax return; outside the world of our Eighth Amendment abolitionist-inspired jurisprudence, it will be regarded as more misrepresentation than math.)


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. By arrogating to himself the power to overturn that decision, JUSTICE BREYER does not just reject the death penalty, he rejects the Enlightenment.