Kansas Death Penalty upheld
The absence of Justice O'Connor's moderating influence is clear in the way the decision is written (and probably also in disorder of the Rapanos Clean Water Act decision). The dissent in this case argues that not only should the tie not go to the prosecution, but that the Supreme Court shouldn't even be taking the case.
The majority opinion, written by Thomas, disagrees fairly politely. But Scalia's concurrence is an inkstain of ill-considered arguments, self-contradictions, and raw bile. It's clear that Scalia and Stevens are not friends, but I expect that when both had to court O'Connor, they both had a reason to moderate their tone. Now, each seems to feel freer to pick at each other's judicial philosophies and indeed their competence as judges.
Scalia's concurrence is not principally a legal argument, but a policy argument about the effectiveness of the death penalty system. He tries and convicts several people whose cases the Court didn't address on the facts, he takes swipes at "non-executed “exonerees” paraded by various professors" (emphasis in the original). He claims that these people's existence stands "as a consequence of the functioning of our legal system" (emphasis still Scalia's). He doesn't note that a lot of those professors (and you can hear the anti-intellectual sarcasm he seems to cast around that word) are in many cases journalism professors. I'm not aware of the Constitutional or statutory role journalism classes are accorded in our legal system, so I'm not entirely sure I appreciate his point. There are relatively few resources available for testing evidence in cases where the defendant has been executed, so the ambiguity of the evidence for actually innocent people executed, but he sure does spend a lot of time criticizing that argument, despite his acknowledgment that the dissenters aren't talking about that issue.
And while I'm sure I'll be schooled on the intricacies of Bush v. Gore for this, I wish that a younger Justice Scalia actually had the respect for federalism and republican (rather than Republican) government embodied in this passage:
When state courts erroneously invalidate actions taken by the people of a State (through initiative or through normal operation of the political branches of their state government) on state-law grounds, it is generally none of our business; and our displacing of those judgments would indeed be an intrusion upon state autonomy.Was voting not an action taken by the people of a State? Did state-law grounds not solely dominate the issue before the Florida Courts? Why was it necessary not only to grant cert, but to block further actions by those state courts? I dare say that, in Scalia's own words, that decision represented "a misguided view of federalism and, worse still, of a republican form of government."
Let's glide past Scalia's confusing digression into mind-reading of international public opinion (foreign courts are out, but foreign public opinion is apparently not). Ignore little jabs at his colleagues on the court.
What you have here is a group of 4 Justices who think that the death penalty is – at best – a necessary evil. Depriving someone of life is a serious action, and one only legitimately taken as a last resort and when absolute certainty matches the absolute consequences of its imposition. The dissenters describe the need for "a reasoned moral response," and criticize "moral irrationality" in a system which imposes death "exactly when a sentencing impasse demonstrates as a matter of law that the jury does not see the evidence as showing the worst sort of crime committed by the worst sort ofcriminal, in a combination heinous enough to demand death." Arrayed against this compelling moral and legal argument, the majority (most of them heros of the allegedly "pro-life" movement) , we have Scalia asserting that he'd never grant "an Eighth Amendment claim that the sentencer’s discretion has been unlawfully restricted.” And we have the majority writing that any death penalty system is A-OK so long as it is restricted at all and allows the jury some amount of discretion.
This is not to say that a moral case is equivalent to a legal case. But a legal case with no moral logic behind it, one that ignores the fundamental difference between locking someone up forever versus putting him to death, cannot be rational and cannot be valid.
Undoubtedly, the pro-life conservatives in the Kansas legislature will cheer at having dodged the necessity of re-writing the death penalty statute to make it even a tiny bit more lenient, or granting a jury the tiniest bit of additional leeway. And I'm sure that makes sense to them. But it doesn't make sense to me.