February 7, 2002

8:31 PM

Scalia: Think the dealth penalty wrong? ResignIn particular, he says, any Catholic jurist who agrees with the Vatican's anti-death penalty stance should resign. One to raise an eyebrow over, given that Scalia - a jurist who just happens to be Catholic - has been a consistent foe of Roe v. Wade and legalized abortion. He says his opposition to Roe, however, is mainly legal, and adds that his religious views should play no role in his decisions.
posted by raysmj (24 comments total)

Scalia's cuckoo for CoCo Puffs.
posted by McBain at 8:37 PM on February 7, 2002

Not to agree with Scalia, but isn't this a good idea? Shouldn't jurists value the law above personal or religious beliefs?

I am sure he is a hypocrite with Roe v. Wade.
posted by phatboy at 9:19 PM on February 7, 2002

Can we attribute the lack of comments on this post more to the fact that the linked article is damn long, or is everyone just sick of arguing about the death penalty? As an anti-capital punishment Oklahoman, I'm so glad that smarmy Governor Keating is quoted for it. Keating's got issues (including calling Tulsa voters "dumb" after not electing his wife to the House of Reps.)
posted by Ufez Jones at 9:29 PM on February 7, 2002

I don't get the impression he's really speaking only about Catholics in that paragraph. It seems to be directed towards anyone.

The point isn't purely a death penalty thing, IMO. If you're working in a system that has written it's rules under the assumption that one course of action is appropriate (in this case the death penalty) and you personally don't believe that, there is some real conflict there.

Roe v. Wade doesn't force a person to either subvert the legal system or make decisions against their conscience. He interprets the law and constitution as it's written. If that leads to bad conclusions, it's the fault of lawmakers and those who drafted the constitution.

If the laws suggest that death is the appropriate penalty for a crime and most judges would sentence that (or don't intervene when a jury does), having one judge who does not as a matter of policy pretty well guarantees there can be no equal protection under the law. Having a judge who sentences death but thinks it's immoral seems just as bad from the judge's perspective. Is any job worth that, if you conscience says it's wrong?

His statements seem fine to me.
posted by mragreeable at 9:35 PM on February 7, 2002

A judge who is against the death penalty still values the law, phatboy. He just favors a certain form of sentencing. Saying they should resign is like saying any judge against administering the maximum possible sentence in every case should resign. Just doesn't make sense.
posted by Doug at 9:37 PM on February 7, 2002

mragreeable, I was under the impression that the law doesn't really state what punishment is appropriate, so much as which forms of sentencing are possible. If that is the case (and maybe it isn't) where is the conflict here?
posted by Doug at 9:40 PM on February 7, 2002

Doug, agreed that the law doesn't "suggest" sentencing in the sense that it says "a person who does this really deserves to die" but it does say that the extreme end of sentencing should be death.

My point is merely that if one person views the most extreme and unreversible form of punishment as a valid option, and another doesn't, clearly justice is not evenly distributed. It's one thing to have a more generally lenient judge, as long as they are all somewhat in agreement over the spectrum of sentencing available.

At that point, your problem becomes with the system as a whole, so why work for a system you view as corrupt?

I view it like I do the judges who quit over mandatory sentencing. I wholeheartedly agree with them on that issue. They have to sign their name to a sentence, yet they have no decision making power. The supreme court hasn't found mandatory sentencing on the whole unconstitutional (though mandatory death is) so at that point their problem is with the system. They can violate their conscience by staying in the system, or violate their oath to the system by breaking it's laws. The best option is to leave and fight it externally.

On a side note, does anyone know if any judges have ever been fired for not sentencing the mandatory sentence? Does the prosecution have any recource at that point? (I wouldn't think so.)
posted by mragreeable at 9:55 PM on February 7, 2002

The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual.

Long, but very interesting indeed. Though I am firmly in favor of abolishing the death penalty and politically unsympathetic to Scalia, I can recognize the profound truth in the sentence of his I have cited. Maybe Scalia has just been stooped too long over his desk reading Plato or Durkheim, but I think one of the chief weaknesses of our democratic society is our inability to invest the state with moral authority.

Why? Because it needs that tribute from its citizens, that moral authority, if it is ever going to make the positive interventions in areas like healthcare that we so desperately need from it. Oh, and by the way, also in order to see the rights of accused criminals honored in a truly adversarial system of justice (something Scalia is extremely callous about crippling)...
posted by Zurishaddai at 10:15 PM on February 7, 2002

Just to make sure his point is clear:

I pause at this point to call attention to the fact that, in my view, 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.

Specifically, should a judge be unable to follow the law if it conflicts with their personal morality, they should resign rather than fail to do their job properly. If they can hand down judgements that they find immoral without a problem, they're free to remain employed, though Scalia seems to assume no judge would be able to hand down judgement he found immoral. That's almost cute. Otherwise, it makes perfect sense in my mind: alterations of policy should be done through the legislative, where they belong, and not through the judicial.

That said, I'm not sure I agree with his conclusion. The eighth amendment uses subjective terms ("cruel", "unusual") which are dependent on the cultural mores of the times to have any meaning. As such, one can quite easily hold a "dead Constitution" view and still allow for the 8th to be reinterpreted as times, the meanings of the terms, and the amendment itself, change. It would be quite messy with regards to judicial precedence, but even Scalia's basic views don't explicitly disallow re-interpretation of the 8th. It would hinge on how much stock you put in the words themselves and how much in the intentions of the authors. H

Re: Roe v. Wade, I fail to see the hypocrisy. I'm not sure the Constitution explicitly allows abortion (this will send me running to read the damn thing again, though), and so opposition to it need not be anything but judicial. I do have issues w/ R v. W, as I have issues with church-state separation cases, despite being vehemently in favor of the results of both.

This dilemma, of course, need not be faced by proponents of the living Constitution who believe that it means what it ought to mean.

Quite true. And the issues would be much easier to deal with if we could separate Constitutional issues with issues of morality and policy. Like, for example, if being against R v. W didn't automatically make you anti-choice and the bane of one side of the aisle.

Of course, all of this really makes you wonder why Scalia doesn't fawn over the Fourth Amendment so much.

IANAL, of course, though I do talk too much. And I love this link. Absolutely fascinating stuff.
posted by apostasy at 10:30 PM on February 7, 2002

sorry, apostasy, what is IANAL?
posted by Ufez Jones at 10:41 PM on February 7, 2002

IANAL = I am not a lawyer?
posted by liam at 10:47 PM on February 7, 2002

Probably so, Liam, thanks
posted by Ufez Jones at 11:00 PM on February 7, 2002

Re: Roe v. Wade, I fail to see the hypocrisy. I'm not sure the Constitution explicitly allows abortion (this will send me running to read the damn thing again, though), and so opposition to it need not be anything but judicial.

I believe this might be because anything not specificly forbidden in the document can be considered a personal decision.
posted by thirteen at 11:10 PM on February 7, 2002

He says his opposition to Roe, however, is mainly legal, and adds that his religious views should play no role in his decisions.
Be interesting to see how important one's religious views are to him and other politicians. I say this b/c the first thing that came to my mind when reading this post was that there is a movement within the Catholic Church to Excomunicate (kick out) people who (among other things) support abortion
posted by jmd82 at 11:21 PM on February 7, 2002

mragreeable: Judges have an abundance of sentencing options available to them. We've all seen those Obscure Store type news stories where the judge sentences somebody to listen to write a book report, or listen to opera for 4 hours rather than giving jail time. I don't think a judge unwilling to sentence a man to 4 hours of Alf isn't fit for the job. They just believe that that punishment isn't appropriate. Those against the death penalty feel that someone who commits murder does not deserve death. I don't really agree that this means that justice isn't fairly distributed...in fact, it's the reason we have judges, and not mandatory sentencing.

I do agree that it completely sucks for the people who get the death penalty.
posted by Doug at 11:55 PM on February 7, 2002

I believe this might be because anything not specificly forbidden in the document can be considered a personal decision.

Anything not specifically forbidden is considered to be at the discretion of the legislature, which may be what you meant. The document (under some views) neither forbids nor allows abortion, but allows legislatures to do either at their leisure without Constitutional issues.

jmd82: IANACatholic, which is precisely why Scalia's conclusion that the Church is wrong on the death penalty has me rather confused. Is it required to toe the line on everything (in which case Catholics supporting abortion might have to be excommunicated)? Are there some edicts you follow and others left to personal decision? Is Scalia a "bad" Catholic for his position? Scalia's support for the death penaly is clearly both moral and legal, so he's not just going along with the law. So, essentially, are the excommunicators right?

Questions not necessarily directed at you, btw, just curious.
posted by apostasy at 11:56 PM on February 7, 2002

Scalia: I pause at this point to call attention to the fact that, in my view, 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.

I don't think that choosing a lesser sentence, when it's your job to choose an appropriate sentence, means that you are ignoring the laws, or sabotaging anything.

I'm assuming that raysmj's use of the word "jurist" was a typo.
posted by bingo at 3:21 AM on February 8, 2002

I'm not sure the Constitution explicitly allows abortion (this will send me running to read the damn thing again, though)... The document (under some views) neither forbids nor allows abortion, but allows legislatures to do either at their leisure without Constitutional issues.

The constitution never mentions abortion, or anything directly related to it. The "constitutional" right to abortion springs from the "constitutional" right to privacy, which is also never mentioned in the constitution. To hear the supreme court tell it, there is this "penumbra" of privacy rights (including some privacy right in abortion, though this is tempered by the state's interest in preventing late term abortions) created by implication by the rights outlined in the bill of rights. In my view, the supremes did what they often do; they pulled the right to privacy (and, more specifically, the right to abortion) out of thin air.

IMALS. (I am a law student).
posted by gd779 at 6:48 AM on February 8, 2002

It is inherently wrong to disqualify jurors based on their opinion of the laws relevant to the case at hand. That is because one of the established rights of a jury (a right that is held jointly and severably) is to rule on the relevant laws, and not just on the strength of the prosecution's case [point of order: a "guilty" or "not guilty" verdict has nothing to do with "did he do it," but is more precisely an answer to the question, "did the prosecution prove beyond a shadow of a doubt that the defendant committed the illegal act"]. So it is perfectly within a jurist's rights to rule, for example, a drug possession defendant not guilty, based on the jurist's belief that drug possession should not be illegal. The progressive review discusses this issue, and has links to other sites.
posted by yesster at 7:10 AM on February 8, 2002

So, according to Scalia, the Senate Judiciary Committee should make decisions of suitability for potential jurists based on their personal viewpoints/interpretations of the law? That's how it sounded to me but I'm hearing a LOT of screaming from Washington that Ashcroft and any potential federal judges SHOULD NOT have their personal views considered....hmmm...I would agree with Scalia (gag) on this one.

I also find it strange that someone who has committed treason should be such a strong advocate of the death penalty. Be careful what you wish for Big Tony!
posted by nofundy at 7:38 AM on February 8, 2002

In my view, the supremes did what they often do; they pulled the right to privacy (and, more specifically, the right to abortion) out of thin air.
Does this mean, you think the idea of having a right to privacy is a bad thing? I would consider this an improvement. Perhaps it should be an ammendment?
posted by thirteen at 8:06 AM on February 8, 2002

It is not established rights of a jury to rule on the law. It is in fact expressly forbidden in the Anglo-American legal system for the jury to rule on the law.

It is the responsibility of the judge to make determinations of law, and the duty of the jury to make determinations of fact obeying in every respect the judge's instructions as to the law. Someone who cannot follow the judge's instructions as to the content of the law is not qualified to be a juror.

Jurors making independent legal determination as to law would simply destroy juries as a valid component of the criminal justice system. 800 years of the right of trial by a jury of one's peers would vanish in a year or two if juries in meaningful numbers starting letting drug dealers and other felons sympathetic in certain corners walk free.
posted by MattD at 8:17 AM on February 8, 2002

MattD: court rulings disagree with you:

As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))

from this site.

And juries are not supposed to make determinations of fact. They make determinations of proof.
posted by yesster at 9:54 AM on February 8, 2002

His statements seem fine to me.
posted by mragreeable at 9:35 PM PST on February 7

Pure gold.
posted by Rastafari at 10:30 PM on February 8, 2002