As the Supreme Court begins to consider challenges to the Death Penalty under the Cruel and Unusual Punishment Clause, one thing that we can be sure of is that Reagan-appointee Antonin Scalia will find any execution method short of drawing and quartering to be Constitutional.
Why? Because Scalia, utter genius that he is purported to be, believes that the founding fathers added the Clause to the Constitution as a form of place setting, just in case future generations forgot the date of the Constitution's enactment.
You see, in the bizarro Scalia-world, the Clause only prohibits things that had already been prohibited in 1786. Thankfully, this "crude" position goes even too far for some at the conservative, but generally rigorous, Hoover Institute, who note its lack of historical foundation and viability.
I particularly will unload on Scalia here because, in spite of his real talents, I believe he embodies much of what is wrong with our country at present.
He is rude. He is arrogant. He does not appear to work well with others, given the gratuitous insults he slings at his "brethern" on the Court.
While highly intelligent, he is not some sort of nonpareil legal genius, in terms of achievement or motor ability. See, e.g. Richard A. Posner, or Richard Epstein for examples of such creatures.
Nevertheless, Scalia is condescending and his own talent and abilities are seemingly being wasted, as he appears to be passing from the stage of being a legal trendsetter towards that of predictable rightwing vote(who thankfully, is not particularly good at assembling winning opinion coalitions.)
In performing his functions, he delights in making public statements about religion and appearing in public with administration members before ruling on cases involving them.
To those who question his legal reasoning with respect to his part in choosing the President in 2000, with respect to providing scant authority for his vote and the notion that the Bush v. Gore case was sui generis, his retort to "just get over it," seems to involve something less than Ivy League reasoning, particularly given the following limiting statement with respect to the decision's future applicability:
"Our consideration [in Bush v. Gore] is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
One can only wonder how many Ivy League credentialled Supreme Court clerks, Scalia and his conservative brethern needed to cobble together such a vapid statement of the obvious as a disclaimer against future criticism of their reasoning.
Nevertheless, legal scholars have been left wondering whether cases that involve "many complexities" are an exception in general to the doctrine of stare decisis, for it seems of such type, there could be quite a few.
Finally, Scalia has recently taken to undercutting Clarence Thomas in the media and criticizing some of his legal theories publicly, for being out of the mainstream, which might be the finest example of the pot calling the kettle a certain color since I don't know when.
Particularly aggravating to those of us who believe in limited government was a concurrence which Scalia issued in a case called Gonzales v. Raich, which dealt with criminal prosecution of medical marijuana users, in which Scalia voted for Alberto Gonzales' and the government's position. All of Scalia's and Thomas's earlier opinions, particularly one decision called Lopez in which gun rights were a subtext, indicated that Bush and the government should have lost on this one and certainly should not have gotten Scalia's vote, which not only undercut years of jurisprudential gains in this area, but essentially overruled Lopez in practice, if not on paper.
Thomas, in the minority on Gonzales, followed his earlier Lopez precedent and found the government's actions unconstitutional. Scalia, on the other hand, switched sides and wrote a self-serving concurrence attempting to at once distinguish his earlier opinions, and at the same time show everyone just how brilliant he is.
I remember in one law school class we once considered why so many lawyers begin to despair of the profession after not that many years of practice. I would submit Scalia's concurrence in this Gonazalez case as evidence therefor. While I am sure that it would get an "A" from Harvard, in its essence it is pure rubbish and he knows it. He just goes around picking and choosing things he likes from various Constitutional clauses, bakes them for 15 paragraphs, and voila, Bush wins.
Legal realism lives and Scalia is its patron saint!
And best of all, there is no way to "prove" that Scalia is wrong because he never truly states the basis of his decision, but merely points to a lot of doctrines and clauses that might support it. This is a concurrence, after all!
In terms of integrity and reasoning, however, Thomas wins this argument hands down. While I may not always agree with his outcomes or reasoning, Thomas, unlike Scalia, appears beholden to no power.
Both his concurrence in Gonzales and his vote in Bush v. Gore, per curiam, in an opinion devoid of any case law or legal reasoning have substantially lessened Scalia's reputation for brilliance. Where once, even reporters and people on the left would reference the power of Scalia's thrusts and attacks on this system, what remains seems to be bereft of power and futile. For some unknown reason, in the middle of his formulaic Gonzales concurrence, without offering any support therefor whatsoever, Scalia gratuitously informs us that "drugs like marijuana are fungible commodities."
Although I did indeed miss the Sixties, or at least all but 5 years of them, this statement certainly encapsulates Scalia's personality. It calls into question what pot Scalia has not been smoking.
Sadly, perhaps, being passed over for Chief Justice and moving into the twilight of a career that once promised so much more, presents the continuing diminishment of an individual whose analysis I once greatly admired, and who offered real insight into statutory (not Constitutional) analysis and interpretation.
As far as an honest and concise explanation for Scalia's result in Gonzales v. Raich, I would submit the following succinct amicus brief submitted by the Incredible Hulk, a conservative legal realist, as a far truer reason for Scalia's divergence from Lopez and for upholding Alberto Gonazles's position:
Guns Good! Pot bad!