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Scalia says he 'wouldn't be surprised' if SCOTUS overturns the death penalty

File photo of U.S. Supreme Court Justice Antonin Scalia courtesy of ABA Media Services.

Updated: Justice Antonin Scalia delivered his standard defense of originalism in a speech on Tuesday that included an unusual observation about the justices’ stance on capital punishment: Scalia said he “wouldn’t be surprised” if the U.S. Supreme Court overturns the death penalty.

Scalia told students at Rhodes College he has four colleagues who believe the death penalty is unconstitutional, reports the Memphis Commercial Appeal. The Associated Press also covered the speech, but did not include Scalia’s death-penalty remarks.

In a June dissent by Justice Stephen G. Breyer, joined by Justice Ruth Bader Ginsburg, he called for a briefing on whether the death penalty is constitutional. “I believe it highly likely that the death penalty violates the Eighth Amendment,” Breyer said in the dissent.

Two days after Scalia’s speech, Pope Francis called for abolition of the death penalty in a speech to Congress. Four Supreme Court justices sitting in the audience, including Ginsburg, did not applaud or visibly react, the Washington Post reports. The other justices in attendance on Thursday were Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Sonia Sotomayor.

Scalia said in his speech that justices on the current Supreme Court are “terribly unrepresentative of our country” and noted the only justice from the South is Clarence Thomas. The other justices are from California, New York and New Jersey. “Do you really want your judges to rewrite the Constitution?” he asked.

The recent same-sex marriage decision, Scalia said, was the “furthest imaginable extension of the Supreme Court doing whatever it wants.”

Scalia said the idea of adding freedoms to the Constitution isn’t “always good, unless you’re an anarchist.” The trick, he said, was to balance freedom with order.

Hat tip: Buzzfeed

Updated at 11:40 a.m. to include information on the Pope’s address to Congress.