Playing by the book: Scalia defends the death penalty
U.S. 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."

The 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."

Attracting 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 trial.

Smiling 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.

Scalia's 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 Supreme Court."

What 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, soul-wrenching question."

The 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.

While 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 punishment.

The 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.

Just 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 minorities.

Though 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 know."

After 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."
- A.W.