In Justice Scalia’s lone dissenting opinion in Morrison v. Olson, he lamented that, after the Court had upheld a law that he believed violated the separation of powers, “there are now no lines.” Lines were of critical importance to Justice Scalia – in law and in life – and informed much of his work on criminal law issues (Morrison, after all, was a case about the nature of federal prosecutorial authority). In the area of capital punishment, in particular, Justice Scalia saw clear lines that the Court should not cross. He believed that the Constitution contemplates the existence of a death penalty, and in the absence of a national consensus against a particular practice or a violation of some specific provision of the Constitution, the Court should avoid judicial abolition to serve some desirable political end. Yet today, there is a serious, renewed effort to employ the judicial branch to abolish the death penalty in America through constitutional adjudication.
This article explores Justice Scalia’s work in capital cases, as well as his extrajudicial writing on the death penalty, and examines the state of the current movement to place the death penalty’s constitutionality before the Supreme Court. In particular, the article considers the effect of Justice Scalia’s death upon the judicial abolition of capital punishment. Ultimately, this article explains why the constitutional abolition of the death penalty by the Supreme Court would cross – indeed dismantle – those lines that Justice Scalia believed to be so important to the preservation of American constitutionalism, federalism, and institutional legitimacy.
Broughton, J. Richard
"The Death Penalty and Justice Scalia's Lines,"
Akron Law Review: Vol. 50:
2, Article 2.
Available at: https://ideaexchange.uakron.edu/akronlawreview/vol50/iss2/2