As written

The SCOTUS plurality decision yesterday in Baze v. Rees, No. 07-5439, slip op. (Apr. 16, 2008 ), while upholding the constitutionality of lethal injection, was almost more notable for the two concurrences that almost single-handedly destroy the modern construct of a “living Constitution.”

First up is Justice Scalia‘s straightforward disassembling of Justice Stevens‘ concurrence, which is premised on little more than Justice Stevens’ “own experience.” Baze v. Rees, slip op. at 17 (Stevens, J., concurring).

Echoing the elegant simplicity of Chief Roberts‘ majority opinion in Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, Nos. 05-908 and 05-915, slip op. at 40-41 (June 28, 2007), in which Chief Roberts reasoned “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Justice Scalia marvels at Justice Stevens’ ability to:

[A]dopt the astounding position that a criminal sanction expressly mentioned in the Constitution violates the Constitution.

Baze, slip. op. at 2 (Scalia, J., joined by Thomas, J., concurring).

Justice Scalia reminds Justice Stevens that, despite Justice Stevens’ contention that the “extinction of life … only marginal[ly] contribut[es] to any discernible social or political purposes,” Baze, slip. op. at 14 (Stevens, J., concurring),

[T]he people have determined whether there is adequate contribution to social or public purposes, and it is no business of unelected judges to set that judgment aside.

Baze, slip. op. at 3 (Scalia, J., joined by Thomas, J., concurring).

As to Justice Stevens’ unsupported musings that the infliction of any pain is violative of the Eighth Amendment, Justice Scalia retorts that:

To state this proposition is to refute it.

Id. at 5.

Justice Scalia next eviscerates Justice Stevens’ additional justification for his view that “the enormous costs that death penalty litigation imposes on society,” including the “burden on the courts and the lack of finality for the victim’s families,” Baze, slip. op. at 12, n. 17 (Stevens, J., concurring), explaining:

Those costs, those burdens, and that lack of finality are in large measure the creation of JUSTICE STEVENS and other Justices opposed to the death penalty, who have “encumber[ed] [it] … with unwarranted restrictions neither contained in the text of the Constitution no reflected in two centuries of practice under it”–the product of their policy views “not shared by the vast majority of the American people.”

Baze, slip. op. at 6-7 (Scalia, J., joined by Thomas, J., concurring) (quoting Kansas v. Marsh, 548 U.S. 163, 186 (2006) (Scalia, J., concurring)).

Finally, Justice Scalia leaps upon Justice Stevens’ striking admission that he “relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional, Baze, slip. op. at 17 (Stevens, J., concurring), concluding:

Purer expression cannot be found of the principle of rule by judicial fiat[;] … [i]t is JUSTICE STEVENS’ experience that reigns over all.

Baze, slip. op. at 7 (Scalia, J., joined by Thomas, J., concurring).

Next is Justice Thomas‘ masterful historical exposition on the history of the various modes of capital punishment in existence at the time the Framers drafted the Eighth Amendment, which–surprisingly to some–takes Chief Roberts’ plurality decision to task over its holding that a method of execution is violative of the Eighth Amendment if it poses a substantial risk of sever pain that could be significantly reduced by adopting readily available alternative procedures. Baze, slip. op. at 13 (Roberts, C.J., joined by Kennedy and Alito, J.J., announcing the judgment of the Court and writing separately).

Justice Thomas quotes a capital punishment abolitionist who himself admitted:

An unbroken line of interpreters has held it was the original understanding and intent of the framers of the Eighth Amendment … to proscribe as “cruel and unusual” only such modes of execution as compound the simple infliction of death with added cruelties or indignities.

Baze, slip. op. at 9 (Thomas, J., joined by Scalia, J., concurring). As Justice Thomas explains, “[t]he evil the Eighth Amendment targets is intentional infliction of gratuitous pain.” Id.

Justice Thomas’ most damning indictment of the fallacy of evolving Constitutional interpretation is his observation that:

It is not a little ironic–and telling–that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected.

Id. at 12.

The combination of Justice Scalia’s pointed observation that Justice Stevens’ admittedly juristical tetherless opinion somehow concludes that a punishment expressly included in the Constitution is violative of the same document, with Justice Thomas’ recounting of the rapidity with which the “living Constitution” school has evolved the construction of the Eighth Amendment, absolutely tear asunder any jurisprudential foundation for a view of a mutable Constitution.

As Professor Lawrence B. Solum has recently written:

The core of originalism is based on common sense about the meaning of the constitutional text and the nature of law. Once the claims of originalism are pruned of ideological excess and theoretical confusion, the common sense appeal of originalism is difficult to resist. Anti-originalists needed fancy theories to defend the counterintuitive positions to which they were driven by their attempts to reconcile deep tensions between their core commitments. There is nothing fancy or
counterintuitive in the core commitments of semantic originalism.

Lawrence B. Solum, Semantic Originalism (April 16, 2008 ) (unpublished article manuscript), available at

Thx to Bench Memos, and theVolokh Conspiracy