Over at NRO's Bench Memos, Ed Whelan makes further criticisms of Dahlia Lithwick's recent article on the death penalty and the Supreme Court.
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Scalia wrote separately in Marsh, as I said above, to emphasize that he thought states can constitutionally restrict the jury's discretion to reject the death penalty. That's what Lithwick is talking about when she says that while the person might not be actually innocent of the crime, Scalia does not explain why they should be subject to capital punishment. Now I'm not going on the record agreeing with Lithwick or not, but I'm quite confident that Whelan understands what she meant when she criticized Scalia.
Lithwick contends that "several justices seem to be staking out strong personal positions on this front in the culture wars." But she offers not an iota of evidence that the justices she criticizes are driven by their "personal" views.
Scalia and Thomas write persistent dissents in a number of death penalty cases where they refuse binding precedent (the 8th amendment evolving standards test) in favor of an originalist approach.
Incidentally, I am NOT making the argument that Scalia votes his preferences. I think he's casting an originalist ballot in the face of contrary precedent. That's a problem I have with originalism, not suspicion about Scalia's motives.
Scalia has repeatedly noted his personal and professional position on the death penalty are one in the same — that he believes the Bible requires, as Lithwick has previously noted, the death penalty for certain crimes &that the Pope is wrong on this regard. Ed appears simply not to have read enough of Scalia's speeches to realize there is a seamless garment between his personal &professional views.
Pure coincidence, no doubt.