Today the Washington Post’s editors take Justice Scalia to task for making an argument they don’t even attempt to rebut. (Nice non-work if you can get it.) Calling his concurrence in last week’s Kansas v. Marsh case “intemperate,” the editors relate what they call his “remarkable claim”:
“One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. . . . But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum.” Justice Scalia sneered that those “ideologically driven to ferret out and proclaim a mistaken modern execution” have been unable to find “a single verifiable case to point to.”
So he’s intemperate? He sneers? Then what to make of this: the Post devotes the rest of the editorial to discussing two cases that might—just might, though the Post admits to uncertainty—prove Scalia wrong about there being no mistaken executions in recent history. But the editors do not stop to notice that even if they are right and Scalia is wrong about that factual matter, it does not necessarily follow, as they simply assert at the end, that the “unthinkable likelihood” of a mistaken execution is enough to call a halt to the use of the death penalty. They quoted enough of Scalia’s argument that they cannot be excused for not noticing their non-engagement with his argument. But here’s Scalia’s view in full, in the final paragraph of his opinion (with my emphasis added):
Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation. But with regard to the punishment of death in the current American system, that possibility has been reduced to an insignificant minimum. This explains why those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to, whereas it is easy as pie to identify plainly guilty murderers who have been set free. The American people have determined that the good to be derived from capital punishment—in deterrence, and perhaps most of all in the meting out of condign justice for horrible crimes—outweighs the risk of error. It is no proper part of the business of this Court, or of its Justices, to second-guess that judgment, much less to impugn it before the world, and less still to frustrate it by imposing judicially invented obstacles to its execution.
Does this need to be explained to the Post’s editors one more time? Even if they could show a handful of mistaken executions in the last few decades, it does not follow that capital punishment is unjust, much less that it is unconstitutional, still less that it is the responsibility of the Supreme Court to rewrite the Constitution to make it appear that it is. Concede every claim made by the Washington Post, and constitutionally they have produced nothing more than a string of non sequiturs.