Justice Scalia's concurring opinion in Baze v. Rees is a must-read. Responding to Justice Steven's newly-minted view that the death penalty is now somehow always a violation of the Eighth Amendment, Justice Scalia marshals the arguments in favor of retribution and deterrence (citing Sunstein & Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs, 58 Stan. L.Rev. 703, 706 (2006), among other sources). His opinion concludes powerfully:
But actually none of this really matters. As Justice STEVENS explains, “ ‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).
Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress-who retain the death penalty as a form of punishment-is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is Justice Stevens' experience that reigns over all.
I take no position on the desirability of the death penalty, except to say that its value is eminently debatable and the subject of deeply, indeed passionately, held views-which means, to me, that it is preeminently not a matter to be resolved here. And especially not when it is explicitly permitted by the Constitution.