Scalia, Breyer Spar Over How to Decide Cases

One of the most conservative justices on the U.S. Supreme Court and one of the most liberal ones sparred over capital punishment, the direct election of senators and various other constitutional questions during a rare public debate that highlighted their philosophical differences.

Antonin Scalia, 74, the longest-serving current justice, appointed by Republican President Ronald Reagan, and Stephen Breyer, 72, appointed by Democrat Bill Clinton, shared the stage in front of a crowd of thousands during a West Texas event organized by Texas Tech University Law School.

They particularly clashed on the question of capital punishment.

Scalia argued that while there’s room for debate about whether the death penalty is a “good idea or a bad idea,” it is not cruel and unusual punishment.

“There’s not an ounceworth of room for debate as to whether it constitutes cruel and unusual punishment because, at the time the Eighth Amendment was adopted — the cruel and unusual punishments clause — it was the only punishment for a felony. It was the definition of a felony. It’s why we have Western movies because horse thieving was a felony.”

Breyer said 200 years ago, people thought flogging at a whipping post was not cruel and unusual.

“And indeed there were whipping posts where people were flogged virtually to death up until the middle of the 19th century,” he said. “If we had a case like that today I’d like to see how you’d vote.”


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