Baude contrasts Justice Scalia's opinion favoring the death penalty against Justice Breyer's opinion that the death penalty may well be unconstitutional. Baude warns against Justice Breyer's opinion that the flaws in the death penalty warrant its abandonment, noting that even with the evidence Justice Breyer provided, this claim is a broad proposal for a court to make, and instead may warrant changes to specific aspects of death penalty administration.
Baude's take on Justice Scalia's opinion is particularly worthy of attention. Baude writes:
Let’s start with Justice Scalia, who argues that the Constitution explicitly blesses the death penalty. The Fifth Amendment says that one cannot be “deprived of life … without due process of law,” and that “capital, or otherwise infamous crime” must proceed by grand jury. Justice Scalia contends that these provisions insulate the death penalty from categorical challenge because it is “obvious” that it “is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”
But this argument ignores the lesson of another constitutional amendment, the Ninth, which is designed to stop precisely the sort of inference that Justice Scalia is making here. The framers worried that codifying individual rights could be dangerous, because identifying specific limits on government power may imply that those are the only limits, with the government otherwise having a free hand. When Congress decided to propose a Bill of Rights nonetheless, James Madison included language to answer this objection — which ultimately became our Ninth Amendment — that warns that no specific right should be taken to preclude other possibly relevant rights.
Unfortunately, that is what Justice Scalia is doing. He considers the specific right to due process before execution and infers from it that the death penalty can never be a “cruel and unusual punishment,” which the Eighth Amendment prohibits. To be clear, Justice Scalia is surely correct that the framers assumed that the death penalty could be imposed without being cruel and unusual, and their assumption may well turn out to be right. But that is an assumption that has to be tested by interpreting the Eighth Amendment by its own lights.Glossip will likely inspire a renewed wave of commentary on the constitutionality of the death penalty. While I suspect the split on the Supreme Court is too one-sided to promise any change in the death penalty's constitutionality in the near future, this discussion will nevertheless be worthy of consideration by state courts and legislatures.