In a 5-4 vote this week, the Supreme Court voted to uphold the constitutionality of the death penalty in Kansas.  In question was ”the validity of the sentencing system under which a death sentence results automatically if the jury finds that the aggravating and mitigating factors are ‘in equipoise,’ neither outweighing the other.” 

It is not in the least remarkable that Justices Thomas and Scalia voted to uphold the death penalty.  What is remarkable is the content of Scalia’s remarks in response to Justice Souter’s dissent.  In what the NY Times describes as an “angry outburst,” Scalia “said there has not been ‘a single verifiable case’ of an innocent person put to death and that the possibility of such a mistake ‘has been reduced to an insignificant minimum.’  Justice Scalia said the dissenting opinion ‘will be trumpeted abroad as vindication’ of what he called ‘sanctimonious criticism of America’s death penalty’ in other parts of the world.” 

The arrogance and high-handed nature of these comments is the hallmark of Scalia’s style, if one can be so generous as to label it a style.  “An insignificant minimum” suggests that the loss of a few innocent lives here and there, most likely African-American based on the stats, is a mere casualty of America’s important mission to poke out an eye for an eye and knock out a tooth for a tooth.  The innocent person that is being put to death considers his case highly significant, Justice Scalia, and, properly, cannot conceive of himself as a “minimum.”  

If there has not been a “single verifiable case” of a person being put to death wrongfully, Justice Scalia, it is because once the person is dead, it’s rather a lot of trouble to dig him up in order to get a DNA sample, and, frankly, why bother, since he cannot be retried or exonerated unless he were to rise up like Lazarus. Not likely, even in Scalia’s world.  

“Embarrassing moment today for Vice President Dick Cheney — as he went through the White House metal detector this morning, security made him empty his pockets and out fell Supreme Court Justice Antonin Scalia.” —Jay Leno