by the book: Scalia defends the death penalty
Supreme Court Justice Antonin Scalia admits that he would rather
be heard and not seen. So watching the quiet facial expressions
of the man whose voice can boom from the Supreme Court bench was
a rare treat for those who attended the January 25 conference
"A Call for Reckoning: Religion & the Death Penalty."
Pew Forum on Religious and Public Life, based in Washington,
D.C., and chaired by Washington Post columnist E. J.
Dionne and Divinity School professor Jean Bethke Elshtain, organized
the daylong conference as part of its stated mission to "promote
a deeper understanding of how religion shapes the ideas and
institutions of American society."
a crowd of more than 400 religious leaders, legal professionals,
students, and community members to the Divinity School, the
conference asked four panels to examine how religion shapes
opinions about and applications of the death penalty. The cornerstone
event, a panel titled Faith, Politics, and the Death Penalty,
included Scalia, former senator Paul Simon (D-IL), and Beth
Wilkinson, the chief prosecutor in the Oklahoma City bombings
broadly under his tinted glasses, the justice fixed his eyes
on his notes while panel moderator Dionne revealed that Scalia,
who taught at the Law School from 1977 to 1982, was a whiz kid
on New York radio contests. According to Dionne, Scalia is also
said to be the only member of the Court who can carry a tune.
smile lingered as he opened the panel with a joke, but he then
noted sternly that his talk-as well as the opinions expressed
by the conference's other speakers-would have "nothing
to do with how I vote in capital cases that come before the
does influence Scalia's vote is his strong opposition to the
notion of a "living" Constitution. "The Constitution
that I interpret and apply is not living but dead, or-as I prefer
to call it-enduring," Scalia said. "It means today
not what current society and 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,
death penalty was permitted with the adoption of the Eighth
Amendment, for murder and all other felonies, including horse
thievery. "And so," Scalia said, "it is clearly
permitted today as far as the Constitution is concerned."
The judge who brings his moral beliefs about the death penalty
with him to the bench, Scalia said, ignores his obligation to
uphold duly enacted laws and should resign.
Scalia divorces his personal opinions on the death penalty from
his job and strictly interprets the Constitution, he also expressed
why, "as a Roman Catholic who is unable to jump out of
my skin," he believes that the death penalty is morally
acceptable. Quoting from St. Paul's Letter to the Romans ("I'm
using, as you would expect, the King James Version"), Scalia's
voice thundered through the passage about divine vengeance and
core of St. Paul's message, which justifies the death penalty,
Scalia argued, "is that government derives its moral authority
from God. It is the minister of God, of the powers to revenge."
This was the consensus of Western thought, Scalia said, until
the emergence of democratic ideas in quite recent times. Undermining
the doctrine of free will which holds individuals accountable
for their actions, the modern notion that people "are what
their history and circumstances have made of them"-and
hence cannot be blamed for their crimes-has gained ground.
as the Constitution endures, so Scalia stood firm in his views,
even after former Illinois senator Paul Simon questioned whether
the death penalty is a "wise" practice and if it ultimately
benefits society. Citing the high price of a long, high-profile
capital punishment case and "the great cost of desensitizing
us to death," Simon argued that the death penalty does
not deter crime and that it discriminates against the poor and
federal prosecutor Wilkinson shared Simon's concern that the
system is flawed, she spoke about her personal struggle to ask
for the death penalty for Oklahoma City bombers Timothy McVeigh
and Terry Nichols. "As a public servant involved with a
death case, every day you confront how you can reconcile participating
in that process where your goal is to execute the defendant,"
Wilkinson said. But she found the strength to face this challenge,
she said, when she saw "the evil of certain individuals
who have a different moral system than I do or than anyone I
the panelists spoke, audience members-among them, a former inmate
imprisoned for a crime and later acquitted-challenged Scalia
about his own moral beliefs and practices. Scalia calmly refused
to budge, except for the few times when he fumed, "Do you
have a question?"
At the close of the panel, which ran for about two and a half
hours, Dionne noted, "I particularly want to thank Justice
Scalia for giving us a sense of what it would be like to appear
before you in court."