Accusing public figures of committing murder is en vogue this week, it seems, for no sooner had Marvin Wilson been executed in Texas yesterday than some on the left started hysterically to blame Antonin Scalia for his death. And why? From Reuters:
“The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is denied,” the court said in an order early on Tuesday evening.
This left some fuming at the justice, serving only to solidify his position as the judicial bête noire of the progressive movement, and setting Twitter ablaze with talk of impeachment and revenge. But had those calling for Scalia’s head read a little further, they would have learned that:
Justice Antonin Scalia handles emergency appeals from the 5th U.S. Circuit Court of Appeals, which oversees Texas.
This is key. Scalia “handles” the emergency appeals, and he “handled” this one. But that does not mean that he was woken up in the middle of the night and asked to play God. Instead, being responsible for the Fifth Circuit, the justice received the request and then referred the case to the court. I have little doubt that, had it come to a vote, Scalia would have sided with Texas — he has made that much clear in other pronouncements — and for that, and for his controversial dissent in Atkins v. Virginia, in which he disagreed with the majority ruling that executing the mentally retarded was unconstitutional, one could quite fairly be angry with him. But not for this.
In this case, as in other such cases, those appealing the case were looking for the Supreme Court to issue a writ of certiorari. The Court’s rules on this are very clear: Consideration of the case requires the assent of only four of the nine justices, and it takes a simple majority to grant a stay of execution. (In extreme circumstances, one justice may grant a stay pending review by the whole Court.) As such, Breyer, Ginsburg, Sotomayor, and Kagan could — at the very least — have joined together and agreed to hear the case, and they would have needed to convince only one other justice that there was trouble afoot in order to save Marvin Wilson’s life. They didn’t.
Moreover, just as Scalia has no authority personally to commute death sentences, nor does the Supreme Court exist to arbitrate on all executions conducted in the United States. Instead,
the Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value. In fact, the Court accepts between 100-150 of the more than 7,000 cases that it is asked to review each year.
Upset and anger over such a case is understandable, and dissatisfaction with what happened yesterday wholly reasonable. One can soberly argue that this set a dangerous precedent, or that Texas plainly violated the spirit of the Atkins decisions, or that the case had sufficient national significance for federal intervention; and one could honestly contend that it was, thus, irresponsible for the Supreme Court not to consider it. One could also argue more generally against the death penalty, or against the laws in Texas, or against the leeway left by the Atkins decision for states to define “mentally retarded” so widely as to render the distinction meaningless. One could even argue that the Supreme Court is full of people indifferent to such things, if that sort of thing appeals.
But what one cannot do with any intellectual rigor at all is to single out Antonin Scalia and pretend that he led to the death of Marvin Wilson. He didn’t. Whatever small role he played in this difficult case, he played along with the other eight justices and, as was probably proper, they took the view that it was none of their business.