America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Supreme Court Justice Antonin Scalia dies at 79

MAJOR BREAKING NEWS: Justice Antonin Scalia passed away in his sleep last night. With his SCOTUS seat now available, President Obama will be tasked with appointing a new Supreme Court Justice. With 361 days left in office, Obama will likely face opposition to any appointment suggestion he makes, but the longest a new appointment has taken was 125 days. This could mean major changes in the dynamics of the Court.

Justice Antonin Scalia
Justice Antonin Scalia
Supreme Court Justice Antonin Scalia was the first Italian-American on the High Court.

(CNN)U.S. Supreme Court Justice Antonin Scalia has died at the age of 79, a government source and family friend told CNN on Saturday.

Scalia died in his sleep during a visit to Texas.

The first Italian-American to sit on the nation's highest court, Scalia was a conservative in thought, but not in personality.

The jaunty jurist was able to light up, or ignite, a room with his often brash demeanor and wicked sense of humor, grounded always in a profound respect for American law and its constitutional traditions.

"What can I say," was a favorite phrase of the man colleagues knew as "Nino." As it turned out, quite a lot.

"Justice Scalia had an irrepressibly pugnacious personality," said Edward Lazarus, a former Supreme Clerk law clerk who wrote about the experience in "Closed Chambers."

"And even in his early years of the Court, that came out at oral argument when he was the most aggressive questioner. And behind the scenes, where the memos he would write-- what were called 'Ninograms'-- inside the court had a real galvanizing effect on the debate among the justices."

A sharp mind combined with a sharp pen allowed Scalia to make his point, both to the pleasure and disappointment of his colleagues and the public.

"He could be belligerent, he was obviously very candid about he felt about things," said Joan Biskupic, a USA Today reporter who wrote a biography of Scalia. "He loved to call it as he saw it, completely not politically correct. In fact, he prided himself on not being PC on the bench in court."

His New York and Mediterranean roots -- "I'm an Italian from Queens" he was fond of saying-- helped fashion a love of words and debate, combining street smarts with a well-calculated conservative view of the law and its limits on society.

"He was very good with audiences that weren't predisposed to like him," said Paul Clement, a former Scalia law clerk. "He was incredibly disarming and charming in his own way."

Former CNN Supreme Court Correspondent Bill Mears researched and wrote much of this obituary prior to Justice Scalia's death. CNN's Steve Almasy and Kevin Bohn contributed to this report.

Source: CNN, Feb. 13, 2016

Justice Scalia found dead at Texas ranch

WASHINGTON — Associate Justice Antonin Scalia, the outspoken leader of the Supreme Court's conservative bloc, was found dead at a Texas ranch Saturday morning, the San Antonio Express News reported on its website.

The newspaper quoted U.S. District Judge Fred Biery, who said he had been told of the death.

Scalia, 79, was a guest at the resort in West Texas, the Cibolo Creek Ranch, reportedly as part of a private group of about 40 people. When he didn't appear for breakfast Saturday, someone went to his room to check on him and found a body.

Texas Gov. Greg Abbott issued a statement Saturday afternoon extending condolences to Scalia's family. He called the justice "the solid rock who turned away so many attempts to depart from and distort the Constitution."

Over nearly three decades on the high court, Scalia's sharp intellect and acerbic opinions made him a hero to conservatives and a target for liberals. Yet he also was a close friend to a leader of the court's liberal wing, Justice Ruth Bader Ginsburg.

Texas Sen. Ted Cruz, a 2016 Republican presidential hopeful and himself a former clerk on the Supreme Court, posted a statement on Facebook mourning the death of "one of the greatest Justices in history." Cruz said, "A champion of our liberties and a stalwart defender of the Constitution, he will go down as one of the few Justices who single-handedly changed the course of legal history."

"My reaction is it's very unfortunate," Biery told the newspaper. "It's unfortunate with any death, and politically in the presidential cycle we're in, my educated guess is nothing will happen until the next president is elected."

President Obama could nominate a candidate to fill the vacancy, but winning confirmation by the Republican-controlled Senate in an election year would be difficult. The opening undoubtedly will fuel at debate in the presidential campaign about the importance of choosing his successor on a closely divided court.

The communications director for Sen. Mike Lee of Utah, a member of the Judiciary Committee, posted a tweet that said the chances of the Senate approving Obama's appointment was "less than zero."


Scalia managed to steer the federal judiciary toward his twin theories of “originalism” and “textualism” -- strictly reading the Constitution and federal statutes to mean what their authors intended, and nothing more. Yet he leaves with more disappointments than achievements and a legacy written in acerbic dissents.

The first Italian-American to serve on the court when he was named by President Ronald Reagan in 1986, “Nino” Scalia established himself as a firm opponent of abortion, gay rights and racial preferences. He was the lone dissenter when the court opened the Virginia Military Institute to women and consistently opposed affirmative action policies at universities and workplaces. When the court struck down the key section of the federal Defense of Marriage Act in 2013, he angrily predicted that it would lead to same-sex marriage -- and in 2015, he was proved right.

On the winning side of the ledger, Scalia was best known for authoring the court’s 2008 ruling in District of Columbia v. Heller upholding the right of citizens to keep guns at home for self-defense. The 5-4 decision, he said, was “the most complete originalist opinion that I’ve ever written.”

But Scalia’s sharp-elbows brand of conservatism more often showed up in testily worded dissents and even what The New York Times labeled “furious concurrences,” in which he agreed with the end result but ranted about the reasoning.

“Dissents are where you can really say what you believe and say it with the force you think it deserves,” he said. And if they prove correct years later, he went on, it “makes you feel good.”

That was the case in Morrison v. Olson, in which the court upheld Congress’ establishment of an independent counsel within the executive branch but beyond the president’s control. Scalia, as the lone dissenter in just his second term, said it infringed on presidential power.

“Frequently an issue of this sort will come before the court clad, so to speak, in sheep's clothing,” he wrote of the balance-of-powers issue. “But this wolf comes as a wolf.”

In time, many conservatives and liberals came to distrust the power given to independent counsels, including Kenneth Starr, whose four-year investigation of President Clinton culminated in his impeachment. Congress let the law expire in 1999.

“It turns out that everything that Justice Scalia says in that opinion … is true,” his liberal colleague, Justice Elena Kagan, said recently.

Scalia also dissented vehemently from a 2012 ruling in an Arizona case that restricted the rights of states to regulate immigration. “You’re not a sovereign state if you can’t control your borders,” he groused.


He opposed the president and favored Congress in the more recent test of President Obama’s recess appointments power. While agreeing with the court’s majority that Obama exceeded his authority by going around the Senate to name members to the National Labor Relations Board, Scalia argued that such power should be limited far more than the court allowed.

"The majority practically bends over backward to ensure that recess appointments will remain a powerful weapon in the president's arsenal," he wrote. "That is unfortunate, because the recess appointment power is an anachronism."

Never one to compromise his principles, Scalia spent most of his career on the court watching helplessly as its moderate members -- Justices Sandra Day O’Connor and, later, Anthony Kennedy -- cut the deals that led to majority opinions on issues such as abortion and gay rights.

His objections, he said recently, were not based on policy views but on “who decides” -- and his answer almost invariably was the Constitution, the Congress or the president, not unelected judges with lifetime appointments like himself.

“Don’t paint me as anti-gay or anti-abortion or anything else,” he said. “We are a democracy. Majority rules.”

Despite his sometimes petulant personality, which he used on occasion to berate unprepared litigators standing alone at the lectern, Scalia was popular with his colleagues. He maintained close friendships with liberals such as Kagan and Justice Ruth Bader Ginsburg, with whom he bonded in the 1980s when they served together on a federal appeals court.

Ginsburg recently recalled listening to Scalia deliver a speech to the American Bar Association. She disagreed with the thesis, she said, but "thought he said it in an absolutely captivating way."

Kagan, whom Scalia taught to hunt for ducks, deer and other game, called him "funny and charming and super-intelligent and witty."

“If you can’t disagree on the law without taking it personally,” Scalia was fond of saying, “find another day job.”


Scalia’s entire career on the high court was spent alongside two chief justices -- William Rehnquist, a nominee of President Richard Nixon who became chief when Scalia joined the court in 1987, and John Roberts, who took over upon Rehnquist’s death in 2005.

Scalia harbored faint hopes of getting the top job then but acknowledged that, at 69, he was too old to give President George W. Bush a chief justice who might serve for several decades. Roberts, at 50, fit the bill.

Instead, Scalia’s claim to fame remained his reliance on the plain language of the Constitution and congressional statutes to guide his decision-making. The founding documents, he said, should not be subject to “whimsical change” by five judges.

“The Constitution means what the people felt that it meant when they ratified it,” he said. “Only in law do we say that the original meaning doesn’t matter.”

While he faced difficulty convincing liberal members of the court to follow his lead on the Constitution, he had more luck when it came to statutory interpretation. “He has won that battle,” Kagan said.

On the bench, Scalia was one of the court’s most active and incisive questioners. Virtually every year, he led all justices in quips that elicited laughter in the courtroom, according to careful tabulations by Boston University law professor Jay Wexler.

Along with Ginsburg and Justice Sonia Sotomayor, the high court’s first Hispanic member, Scalia also was a hot ticket on the speaking circuit. He was the inspiration for several theatrical endeavors, including a play, The Originalist, which ran for three months to rave reviews in Washington, D.C., and a comic opera, Scalia/Ginsburg.


While the Heller decision on the right to bear arms was perhaps Scalia’s most famous, he later admitted that the right is not unlimited. Many states impose restrictions on firearms outside the home, such as requiring a demonstrated need to carry a gun, whether concealed or in plain sight. Most lower courts have upheld those restrictions.

“There are doubtless limits – but what they are, we will see,” he said. Still, he waxed sentimental about the days when, as a student, he could carry a .22-caliber rifle on the New York City subways.

At times hard to categorize, Scalia joked that he “should be the pin-up for the criminal defense bar” because of his oft-stated defense of the Fourth Amendment’s prohibition on unreasonable searches and seizures and his belief that defendants have the right to confront their accusers in court.

Inside the marble-columned courtroom, Scalia led the way toward more intense interaction between the justices and lawyers. Only his ideological soul mate, Justice Clarence Thomas, refuses to participate in the rapid-fire questioning.

“It’s a very noisy court, not just me,” Scalia said. Another time, he acknowledged that “I often ask a question just for the hell of it.”

“I really do enjoy oral argument,” he said. “The intellectual thrust and parry -- it’s almost like an English play.”

Yet he despised displays of overt partisanship, such as those at the president’s annual State of the Union addresses. Scalia boycotted the event for many years, arguing that for the justices to sit quietly in the front row gives “dignity to a childish spectacle.”

He was never a fan of the media, complaining that most news reports of the court’s work focused only on the result, rather than the underlying reasoning. He imposed strict limits on press access at his public appearances and remained a firm opponent of letting cameras into court.

“It will be ‘man bites dog,’” he said of the imagined spectacle. “Why should I participate in the mis-education of the American people?”


Antonin Gregory Scalia was born March 11, 1936, in Trenton, N.J., the only child of a Sicilian immigrant father and second-generation Italian mother. His family moved to the borough of Queens in New York City during his childhood, and he established himself as a devout Catholic and a quick study in school.

After graduating from Georgetown University, Scalia said, “I had no idea what I wanted to do.” He chose law school and “just loved it ... everything about it is what I liked to do.”

Scalia graduated magna cum laude from Harvard Law School in 1960 and spent seven years in private practice before yearning for academia. He taught for five years at the University of Virginia School of Law, then worked for the Nixon and Gerald Ford administrations in a variety of jobs, culminating as assistant attorney general in charge of the Office of Legal Counsel.

After Democrat Jimmy Carter’s election in 1976, Scalia returned to academia at the University of Chicago Law School, where he became one of the first faculty advisers to the fledgling Federalist Society, now the institutional bulwark of conservative legal doctrine.

Reagan’s election gave him a shot to become U.S. solicitor general, whose job it is to represent the federal government before the Supreme Court. He lost out but in 1982 was named to the U.S. Court of Appeals for the District of Columbia Circuit, a well-worn stepping-stone to the Supreme Court. Four years later, he won unanimous Senate confirmation.

Along the way, he and his wife, Maureen, had nine children who in turn, at last count, produced 36 grandchildren. He frequently credited his wife for raising the family.

“I take care of the Constitution. She takes care of everything else,” he said. “That’s the deal.”

Source: USA Today, Susan Page and Richard Wolf, February 13, 2016

Justice Antonin Scalia, Who Led a Conservative Renaissance on the Supreme Court, Is Dead at 79

Antonin Scalia
Antonin Scalia
Justice Antonin Scalia, whose transformative legal theories, vivid writing and outsize personality made him a leader of a conservative intellectual renaissance in his three decades on the Supreme Court, was found dead on Saturday at a resort in West Texas, according to a statement from Chief Justice John G. Roberts Jr. He was 79.

“He was an extraordinary individual and jurist, admired and treasured by his colleagues,” Chief Justice Roberts said. “His passing is a great loss to the Court and the country he so loyally served.”

The cause of death was not immediately released.

Justice Scalia began his service on the court as an outsider known for caustic dissents that alienated even potential allies. But his theories, initially viewed as idiosyncratic, gradually took hold, and not only on the right and not only in the courts.

He was, Judge Richard A. Posner wrote in The New Republic in 2011, “the most influential justice of the last quarter century.” Justice Scalia was a champion of originalism, the theory of constitutional interpretation that seeks to apply the understanding of those who drafted and ratified the Constitution.

In Justice Scalia’s hands, originalism generally led to outcomes that pleased political conservatives, but not always. His approach was helpful to criminal defendants in cases involving sentencing and the cross-examination of witnesses.

With the retirement of Justice John Paul Stevens in 2010, Justice Scalia became the longest serving member of the current court. By then, Justice Scalia was routinely writing for the majority in the major cases, including ones on the First Amendment, class actions and arbitration.

He was an exceptional stylist who labored over his opinions and took pleasure in finding precisely the right word or phrase. In dissent, he took no prisoners. The author of a majority opinion could be confident that a Scalia dissent would not overlook any shortcomings.

Justice Scalia wrote for a broader audience than most of his colleagues. His opinions were read by lawyers and civilians for pleasure and instruction.

Justice Scalia’s sometimes withering questioning helped transform what had been a sleepy bench when he arrived into one that Chief Justice Roberts has said has become too active, with the justices interrupting the lawyers and each other.

Source: The New York Times, Adam Liptak, Feb. 13, 2016

Supreme court justice Antonin Scalia dies at 79

President Ronald Reagan announces the nomination of Antonin Scalia
to the supreme court in September 1986. William Rehnquist is at right.
Photograph: Ron Edmonds/AP
The supreme court justice Antonin Scalia has died. He was 79.

The supreme court chief justice, John Roberts, the Republican Texas governor Greg Abbott and the US marshals service confirmed that Scalia had died.

In a statement, Roberts said: “On behalf of the court and retired justices, I am saddened to report that our colleague Justice Antonin Scalia has passed away.

“He was an extraordinary individual and jurist, admired and treasured by colleagues. His passing is a great loss to the court and the country he so loyally served.”

The San Antonio Express News reported that Scalia was found dead on Saturday morning at a ranch in the Big Bend region of Texas, south of Marfa, and said he had been discovered to have died after not attending a breakfast.

Local ABC affiliate KVIA reported that Scalia died in his sleep after a day of quail hunting.

Scalia was appointed to the court in 1986, by President Ronald Reagan, as the first Italian American to serve on the high court. He was born in Trenton, New Jersey in 1936 and brought up in New York City. From private practice and academia he entered public service during the Nixon administration, and became an appeals court judge under Reagan.

His written rulings and opinions divided observers, infuriating liberals. He dissented, for example, in the 2015 case which legalised same-sex marriage across the US, and caused controversy with comments about race and healthcare.

Governor Abbott, a Republican, said in a statement: “Justice Antonin Scalia was a man of God, a patriot, and an unswerving defender of the written constitution and the rule of law.

“He was a solid rock who turned away so many attempts to depart from and distort the constitution. His fierce loyalty to the constitution set an unmatched example, not just for judges and lawyers, but for all Americans.”

The process to nominate and confirm his replacement is bound to be fraught, with a Democratic president in his final year in office confronting a fiercely antagonistic, Republican-held Congress.

Not long after the news was confirmed, Conn Carroll, communications director for Mike Lee of Utah, a Republican member of the Senate judiciary committee, used Twitter to say: “What is less than zero? The chances of Obama successfully appointing a supreme court justice to replace Scalia?”

He added: “If anything this will put a full stop to all Obama judicial nominees going forward.”

In a brief preliminary statement, a White House spokesman said: “Obama was informed of Scalia’s death this afternoon. He and [Michelle Obama] extend deepest condolences.”

The Texas senator Ted Cruz, a leading contender for the Republican presidential nomination who clerked in the supreme court while Scalia was on the bench, said on Twitter: “Justice Scalia was an American hero. We owe it to him, [and] the nation, for the Senate to ensure that the next president names his replacement.”

In a statement emailed to the Guardian, a spokeswoman for Donald Trump, the Republican frontrunner for president, said: “Justice Scalia was a remarkable person and a brilliant supreme court Justice, one of the best of all time.

“His career was defined by his reverence for the constitution and his legacy of protecting Americans’ most cherished freedoms.”

Another Republican presidential contender, Marco Rubio, said: “One of the greatest honors in my life was to attend oral arguments during Town of Greece v Galloway and see Justice Scalia eloquently defend religious freedom. I will hold that memory forever.”

In a statement, Cruz indicated his own conservative stance on how the constitution should be interpreted when he said: “As liberals and conservatives alike would agree, through his powerful and persuasive opinions, Justice Scalia fundamentally changed how courts interpret the constitution and statutes, returning the focus to the original meaning of the text after decades of judicial activism.”

Cruz also called Scalia’s time on the court “one of President Reagan’s most consequential legacies”.

“Our prayers are with his beloved wife Maureen, their nine children, and their precious grandchildren,” he said.

Source: The Guardian, Martin Pengelly, Ben Jacobs, Feb. 13, 2016

Scalia’s death plunges court, national politics into turmoil

The death of Justice Antonin Scalia Saturday plunged the Supreme Court and the nation’s politics into turmoil, and an immediate partisan battle began over whether President Obama should be allowed to nominate his successor.

Senate Majority Leader Mitch McConnell (R-Ky) said in a statement that the Senate should not confirm a replacement for Scalia until after the election.

“The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said.

But the battle lines were immediately apparent. Senate Democratic leader Harry Reid followed McConnell’s statement with one of his own:

“It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat,” he said. “Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”

Scalia’s shocking death also creates doubt about the outcome of a Supreme Court term that was filled with some of the most controversial issues facing the nation: abortion, affirmative action, the rights of religious objectors to the contraceptive mandate in the Affordable Care Act, the president’s powers on immigration and deportation.

An eight-member court could split on all of those issues.

Scalia, 79, was the court’s second-oldest and longest serving justice, having joined the court in 1986. He was the cornerstone of the modern conservative legal establishment, known as a brilliant writer and acerbic critic.

Source: The Washington Post, Robert Barnes, Feb. 13, 2016

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