In a prime time interview that aired on CBS two Sundays ago, “60 Minutes” correspondent Leslie Stahl reminded Justice Antonin Scalia that he has lamented his role on the highest court in the land. “You’ve apparently had some down times in your tenure on the court,” Stahl said. And then, Stahl read from a note Justice Scalia had written: “I am beginning to repeat myself.” Death Penalty Déjà Vu

In a prime time interview that aired on CBS two Sundays ago, “60 Minutes” correspondent Leslie Stahl reminded Justice Antonin Scalia that he has lamented his role on the highest court in the land. “You’ve apparently had some down times in your tenure on the court,” Stahl said. And then, Stahl read from a note Justice Scalia had written: “I am beginning to repeat myself.”

Justice Scalia penned that note more than a decade ago, responding to Justice Harry Blackmun, an ideological opposite who had retired from the bench two terms earlier. Justice Blackmun had reached out to cheer up Justice Scalia, writing in a note that while “this has not been an easy year for you … it is over with, and next October one will be rejuvenated and a new chapter will unfold.” It was this advice that prompted Justice Scalia’s candid reply: “You are right that I am more discouraged this year than I have been at the end of any … previous [term]. … I am beginning to repeat myself and don’t see much use in it any more.”

Luckily for the Constitution -- not to mention “We the People,” who have always held and continue to retain the sole right to change the “supreme Law of the Land” -- Justice Scalia has never stopped repeating himself in defense of what our founding document actually says.

The latest example of Justice Scalia repeating himself in support of constitutional text came in a landmark death penalty case decided just last month, in which the majority upheld the continued use of lethal injection under the Eighth Amendment.

While the decision itself is perhaps the most important capital punishment pronouncement in a generation, it is Justice Scalia’s textual rejoinder against the unrelenting assault on the constitutionality of the death penalty that should be “must read” material for those who care about what the Constitution actually says on the subject. In fact, it should have been “must read” material nearly a decade-and-a-half ago when Justice Scalia wrote nearly exactly the same comments in response to Justice Blackmun’s famous announcement that he “no longer shall tinker with the machinery of death.”

To that impassioned conclusion -- reached not on the basis of what Justice Blackmun admitted the “Constitution appears to permit,” but instead based on his own “intellectual, moral, and personal objections to the death penalty, as well as “evolving standards of decency” -- Justice Scalia simply quoted the constitutional text that Justice Blackmun was all too willing to change or ignore.

“The Fifth Amendment provides that ‘no person shall be held to answer for a capital … crime, unless on a presentment or indictment of a Grand Jury, … nor be deprived of life … without due process of law,’” Justice Scalia wrote.

That language “clearly permits the death penalty to be imposed, and established beyond doubt that the death penalty is not one of the ‘cruel and unusual punishments’ prohibited by the Eighth Amendment,” Justice Scalia reminded Justice Blackmun in 1994.

That was a reminder worth repeating less than a month ago when Justice John Paul Stevens took Justice Blackmun’s place by “rel[ying] on my own experience in reaching the conclusion that the imposition of the death penalty … ‘[is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’” So there it was, at the top of Justice Scalia’s response to Justice Stevens: “This conclusion is insupportable as an interpretation of the Constitution … the very text of the document recognizes that the death penalty is a permissible legislative choice.”

Let us be perfectly clear, “We the People” and our Constitution need these types of déjà vu, not because we can’t read the Constitution for ourselves, but because all too often some of the nine justices seem not to care to do so themselves. It is this transgression that continually prompts Justice Scalia’s repetitions that our country through the Constitution is not to be “rule[d] by judicial fiat.”

In other words, as Justice Scalia explained in 1994, when judges decide a case that “cause[s] the Constitution to prohibit what its text explicitly permits,” then it is the judicial decision that “must be wrong.” Or, as he explained just last month: It is what the Constitution actually says, not a justice’s “experience that reigns over all.”

May 7, 2008
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