Justice Scalia's Eighth Amendment Jurisprudence: The Failure of Sake-of-Argument Originalism.

• Author: Lerner, Craig S.

Introduction I. Trop v. Dulles: Evolving Standards of Decency II. Varieties of Originalism III. Justice Scalia's Eighth Amendment Opinions A. Pre-Harmelin Cases 1. Victim Impact Statements 2. Juvenile Death Penalty 3. Sentencing Discretion in Capital Cases B. Harmelin v. Michigan C. The Post-Harmelin Cases 1. Sentencing Discretion in Capital Cases Revisited 2. The Death Penalty and the Mentally Retarded 3. Juvenile Death Penalty: Rhetorical Escalation 4. Silence 5. Execution Protocols IV. Reconciling Originalism and Precedent V. Conclusion: Originalism's Prospects Introduction

In his penultimate Term on the Supreme Court, Justice Scalia identified the case that "has caused more mischief to our jurisprudence, to our federal system, and to our society than any other." (1) Few would guess the culprit: Trop v. Dulles. (2) To the extent that Trop can claim any fame, it is for Chief Justice Warren's pronouncement that, "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (3)

One need not be well versed in theories of constitutional interpretation to understand why such a statement provoked Justice Scalia. The statement is a candid assertion of what has become known as living constitutionalism--the bete noire of Justice Scalia's originalism. (4) According to a narrative embraced by Justice Scalia and other originalists, the idea expressed in that disreputable sentence has given rise to sundry decisions that have mutilated the constitutional fabric of the republic. (5) For example, during the oral argument in the 2013 challenge to California's constitutional amendment foreclosing same-sex marriage, Justice Scalia inquired, "[w]hen did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868[?]" (6) Counsel for petitioner, evoking the spirit of Trop v. Dulles, responded, "There's no specific date in time. This is an evolutionary cycle." (7)

The case in which Justice Scalia pronounced his indictment of Trop exemplifies, in his view, the mischief that arises when one adopts the view that "evolving standards," rather than the text's fixed original meaning, are paramount in judicial interpretations of the Constitution. Justice Scalia leveled his charge against Trop in response to Justice Breyer's dissenting opinion in the 2015 case of Glossip v. Gross, which involved a challenge to Oklahoma's execution protocol. (8) Justice Breyer there emerged as the most recent in a line of Justices who have called into question the constitutionality of the death penalty. (9) Intellectual contortions are required to make this argument, according to Justice Scalia, for "[i]t is impossible to hold unconstitutional that which the Constitution explicitly contemplates." (10) To achieve this impossible feat, Justice Breyer, like others before him, is obliged to acknowledge Trop as the inspiration for his constitutional jurisprudence. Thus emboldened, Justice Breyer writes, "[the] 'claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the 'Bloody Assizes' or when the Bill of Rights was adopted, but rather by those that currently prevail.'" (11)

It was in the course of his response to this argument that an exasperated Justice Scalia condemned Trop in the sweeping terms that introduced this Article. (12) The sentence immediately preceding this indictment is also worthy of close attention:

If we were to travel down the path that Justice Breyer sets out for us and once again consider the constitutionality of the death penalty, I would ask that counsel also brief whether our cases that have abandoned the historical understanding of the Eighth Amendment, beginning with Trop, should be overruled. (13) Implicit in this sentence is the remarkable concession that Justice Scalia tolerated Trop and the cases that followed it for the 28 years he had served on the Supreme Court, despite the fact that those cases severed the Eighth Amendment from what Justice Scalia viewed as its original meaning. If Trop really had "caused more mischief to our jurisprudence, to our federal system, and to our society than any other," (14) surely Justice Scalia should have stated his intention, or at least his willingness, to overrule the decision long ago, not only for its effect on Eighth Amendment jurisprudence but also for the symbolic value of reaffirming a commitment to the Constitution's original meaning. Why was Justice Scalia willing to apply Trop for nearly three decades, and what had he come to learn by 2015 that prompted him, at least contingently, (15) to call for Trop's reconsideration?

In answering this puzzle, we confront what Professor Nelson Lund has called in a recent consideration of Justice Scalia's jurisprudence, "the dilemma of constitutional originalism." (16) At this late date in the American republic, precisely how is a judge in our common law tradition, of which Justice Scalia considered himself a member, to follow the original meaning of the Constitution, to which Justice Scalia professed allegiance? As Lund writes, "The tension between the doctrine of stare decisis and the principle of originalism became acute in the wake of the Warren Court's creation of a large number of precedents that disregarded both the original meaning of the Constitution and boatloads of existing precedent." (17) Lund then illustrates the difficulty by considering a line of cases "that does not involve a provocative political issue," that is, the dormant commerce clause. (18) He demonstrates that Justice Scalia's commitment to originalism was diluted by an eclectic deference to precedent. (19)

This Article analyzes the tension between originalism and precedent in a politically and morally fraught context: the Eighth Amendment. By the time Justice Scalia joined the Supreme Court in 1987, the jurisprudence in this area, particularly with respect to the death penalty, had swollen into a thicket of precedents. And in an important sense, all of these precedents claimed Trop as their distant, or not-so-distant, ancestor. How is an originalist to reconcile the conflicting demands of the Constitution on the one hand and these precedents on the other? Justice Scalia's contention that the Eighth Amendment forecloses only those modes of punishment considered cruel and unusual in 1791 complicates the question. Consider that punishment practices in 1791 were often barbaric when viewed from the predominant modern perspective. When confronted with the choice between the original meaning of the Constitution and a clearly erroneous precedent that better aligns the Constitution with the moral tenor of the times, which is an originalist judge to choose?

Academics critical of originalism as an interpretative methodology have long focused on the inability of originalism to account for, let alone justify, deeply entrenched, but dubiously originalist precedents, such as the Legal Tender Cases, (20) International Shoe Company v. Washington, (21) a litany of New Deal cases, (22) and, most significantly, Brown v. Board of Education. (23) Justice Scalia's willingness to defer to these precedents highlighted, for these scholars, the opportunism of his originalism, the way it provided "rule of law" cover for the promotion of a conservative political agenda. (24) Curiously, several scholars sympathetic to an originalist methodology have also criticized Justice Scalia's jurisprudence in this regard. Nelson Lund and Randy Barnett have attacked what they regard as his inconsistency in stridently adhering to the Constitution's meaning in some cases and then humbly deferring to nonoriginalist precedents in others--with scarcely an explanation of why some precedents deserve respect and others should be overruled. (25)

In a lecture delivered in 1988, Justice Scalia invited precisely this criticism, by implying that (in an Eighth Amendment context) he was only a "faint-hearted originalist." (26) This concession would become, over the next three decades, Exhibit A in any prosecution of Justice Scalia for inconsistency and hypocrisy. (27) Seldom noted, however, is that after making this concession, Justice Scalia seemed to withdraw or, at a minimum, qualify it. At least in Justice Scalia's own mind, he was not so much a "faint-hearted originalist" as a judge who ordinarily could reconcile the demands of the Constitution with even unprincipled nonoriginalist decisions, such as Trop. He wrote:

The vast majority of my dissents from nonoriginalist thinking (and I hope at least some of those dissents will be majorities) will, I am sure, be able to be framed in the terms that, even if the provision in question has an evolutionary content, there is inadequate indication that any evolution in social attitudes has occurred. (28) In other words, Justice Scalia argued that, at least in the context of the Eighth Amendment, he often could accept even the grotesquely nonoriginalist Trop as good law (that is, he could accept for the sake of argument that the Eighth Amendment has evolutionary content) and still prevail in upholding the Constitution's meaning. Thus, he suggested that he was a "pure originalist[]-accepting-for-the-sake-of-argument-evolutionary-content." (29)

This Article is the first to use this framework to consider Justice Scalia's Eighth Amendment jurisprudence. Justice Scalia anticipated that his opinions would be framed as arguments in the alternative: first, that the Eighth Amendment, properly understood, did not foreclose a punishment; and, in the alternative, that even if nonorginalist precedents were followed, the result would be the same, because there was "inadequate indication that any evolution in social attitudes has occurred." (30) "Sake-of-argument originalism" was Justice Scalia's ingenious solution to the "dilemma of constitutional originalism," at least in the area of the Eighth Amendment. The dilemma could...