Justice Stephen Breyer (Chip Somodevilla/Getty)

Two Supreme Court justices made the case against the constitutionality of the death penalty Monday, even though it is specifically named in the U.S. Constitution.

Justice Stephen Breyer disagreed with the five justices who ruled today that a particular means of administering the death penalty by lethal injection is constitutional. “I believe it highly likely that the death penalty violates the Eighth Amendment,” he wrote in a dissent that was joined by Justice Ruth Bader Ginsburg.


Justice Antonin Scalia was appalled. “It is impossible to hold unconstitutional that which the Constitution explicitly contemplates,” he replied. “The Fifth Amendment provides that ‘[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,’ and that no person shall be ‘deprived of life . . . without due process of law.’”

Breyer’s willingness to invoke the Eighth Amendment as “the relevant legal standard” in the death penalty case despite the more explicit text of the Fifth Amendment, apparently struck Scalia as a fitting demonstration of his liberal colleagues’ jurisprudence. “Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia,” he wrote. “The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”

#related#When the decision was announced from the bench, Scalia took the rare step of juxtaposing Breyer’s reasoning about the death penalty with the Supreme Court’s recent ruling that the Fourteenth Amendment implicitly guarantees gay couples the right to marry. “Unlike [same-]sex marriage,” Scalia said when the decision was announced from the bench, per MSNBC, “the death penalty is approved by the Constitution.”


— Joel Gehrke is a political reporter for National Review.