United States Supreme Court Associate Justice Antonin Scalia, one of the Court’s most ardent pro­po­nents of cap­i­tal pun­ish­ment, has died at age 79.

Justice Scalia suc­cinct­ly sum­ma­rized his opin­ion of the con­sti­tu­tion­al­ly of the death penal­ty at a book sign­ing at the American Enterprise Institute in 2012. He said: ​“The death penal­ty? Give me a break. It’s easy.”

As he was with oth­er issues, Justice Scalia was often ascer­bic in his cri­tique of oppos­ing views about the death penal­ty. In response to Justice Blackmun’s state­ment in 1994 in Callins v. Collins that he would ​“no longer tin­ker with the machin­ery of death,” Scalia labeled attacks on the con­sti­tu­tion­al­i­ty of the death penal­ty ​“sanc­ti­mo­nious.” In 2015 in Glossip v. Gross, he called the argu­ments of Justice Stephen Breyer and Ruth Bader Ginsburg sug­gest­ing that the death penal­ty may be uncon­sti­tu­tion­al ​“gob­bledy gook.” When Justice Breyer con­curred with the Court’s rul­ing in Ring v. Arizona that cap­i­tal defen­dants have a right to a jury deter­mi­na­tion of aggra­vat­ing cir­cum­stances nec­es­sary to impose the death penal­ty, but based his deci­sion on an Eighth Amendment right to jury sen­tenc­ing rather than the Court’s Sixth Amendment right to jury factfind­ing announced in Apprendi v. New Jersey, Justice Scalia wrote: ​“While I am, as always, pleased to trav­el in Justice Breyer’s com­pa­ny, the unfor­tu­nate fact is that today’s judg­ment has noth­ing to do with jury sen­tenc­ing. What today’s deci­sion says is that the jury must find the exis­tence of the fact that an aggra­vat­ing fac­tor exist­ed. Those States that leave the ulti­mate life-or-death deci­sion to the judge may con­tin­ue to do so – by requir­ing a pri­or jury find­ing of aggra­vat­ing fac­tor in the sen­tenc­ing phase or, more sim­ply, by plac­ing the aggra­vat­ing-fac­tor deter­mi­na­tion (where it log­i­cal­ly belongs any­way) in the guilt phase. There is real­ly no way in which Justice Breyer can trav­el with the hap­py band that reach­es today’s result unless he says yes to Apprendi. Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a tick­et to Apprendi-land.”

Justice Scalia was an avid adher­ent of what he called ​“tex­tu­al­ism,” and chafed at the Court’s use of ​“evolv­ing stan­dards of decen­cy” to exempt indi­vid­u­als and offens­es from cap­i­tal sanc­tions. He sup­port­ed the impo­si­tion of the death penal­ty against juve­nile offend­ers and those with intel­lec­tu­al dis­abil­i­ties and was undaunt­ed by the prospects of exe­cut­ing the inno­cent. In 2002, Justice Scalia dis­sent­ed from the Court’s hold­ing in Atkins v. Virginia that the 8th Amendment pro­hibits the exe­cu­tion of per­sons with men­tal retar­da­tion (now called intel­lec­tu­al dis­abil­i­ty), writ­ing ​“The fact that juries con­tin­ue to sen­tence men­tal­ly retard­ed offend­ers to death for extreme crimes shows that society’s moral out­rage some­times demands exe­cu­tion of retard­ed offend­ers.” He had pre­vi­ous­ly vot­ed with a 5 – 4 Court major­i­ty in 1989 in Penry v. Lynaugh to uphold the con­sti­tu­tion­al­i­ty of sub­ject­ing the intel­lec­tu­al­ly dis­abled to the death penal­ty. Also in 1989, he authored the Court’s 5 – 4 opin­ion in Stanford v. Kentucky hold­ing that the impo­si­tion of cap­i­tal pun­ish­ment upon a 16-year-old offend­er did not con­sti­tute cru­el and unusu­al pun­ish­ment under the 8th Amendment. He dis­sent­ed from the Court’s 2003 deci­sion in Roper v. Simmons over­turn­ing Stanford and bar­ring the exe­cu­tion of juve­nile offend­ers. Justice Scalia and Justice John Paul Stevens set the polestars for the debate on inno­cence and the death penal­ty in the case of Troy Davis (In re Davis) in 2011. While Stevens wrote that ​“it would be an atro­cious vio­la­tion of our Constitution and the prin­ci­ples upon which it is based to exe­cute an inno­cent per­son,” Scalia coun­tered that “[t]his court has nev­er held that the Constitution for­bids the exe­cu­tion of a con­vict­ed defen­dant who has had a full and fair tri­al but is lat­er able to con­vince a habeas court that he is ​‘actu­al­ly’ innocent.”

Justice Scalia was part of 5 – 4 con­ser­v­a­tive majori­ties in a num­ber of sig­nif­i­cant death penal­ty cas­es, from the 1987 deci­sions in McCleskey v. Kemp severe­ly lim­it­ing the abil­i­ty of cap­i­tal defen­dants to obtain relief for race dis­crim­i­na­tion in the appli­ca­tion of the death penal­ty and in Tison v. Arizona per­mit­ting the exe­cu­tion of offend­ers who nei­ther killed nor intend­ed that a killing take place, but exhib­it­ed reck­less indif­fer­ence to human life. His 2006 con­cur­ring opin­ion in Kansas v. Marsh expressed doubts that any inno­cent per­son had been exe­cut­ed; if any had been, he said death penal­ty oppo­nents would have ​“shout­ed from the rooftops” the inno­cen­t’s name. In Callins, he sin­gled out the bru­tal mur­der of an 11-year-old girl as sup­port for cap­i­tal pun­ish­ment: ​“How envi­able a qui­et death by lethal injec­tion com­pared with that!” Twenty years lat­er, DNA exon­er­at­ed Henry McCollum, the intel­lec­tu­al­ly dis­abled North Carolina man who had been sen­tenced to death for that murder.

(M. Sherman, ​“Justice Antonin Scalia dead at 79,” Associated Press, February 13, 2016.) See U.S. Supreme Court.