Wednesday, April 12, 2017

Judge Sheila Abdus-Salaam, RIP

Shocking, tragic, and heartbreaking. Those are the first words that come to mind in reacting to the loss of Court of Appeals Judge Sheila Abdus-Salaam.

She was an absolutely lovely person and a magnificent judge. She was loved and admired by her colleagues and by all of us who were fortunate to get to know her.

Here she is recently with Albany Law students to whom she generously gave her time and openly shared her enthusiasm, humility, and insights about being a Judge on New York's highest court:

Judge Abdus-Salaam with Albany Law School's
 Court of Appeals Seminar students

Judge Abdus-Salaam's death is an enormous loss to the Court, to the state, to the law, and to all those who have been the beneficiaries of her wisdom, decency, and exquisite professional and personal example.

Tuesday, April 4, 2017

Gorsuch--Yes, Backward and Extreme (Part 1)

The Democrats in the Senate are right on this one. Judge Neil Gorsuch, President Trump's nominee for the Supreme Court, is indeed backward and extreme. Not necessarily him personally--I don't know him nor do I know others who do. But to be sure, his jurisprudence, as he himself has explained it and as he has applied it in deciding cases, is backward and extreme.

In fact, that is why he is supported so strongly by conservative Republicans, and other social conservatives. That is why he was placed on the list of recommended nominees from which Trump picked him. That list was produced by the Federalist Society and the Heritage Foundation, They are two very ideologically conservative organizations. They do their homework. They know his record.

Those strong supporters may not prefer the labels "backward" and "extreme." But no doubt, that is why they really like him.

Let's consider Gorsuch's own words.
Judges, he has said, should apply the law "focusing backward, not forward," in accordance with "what a reasonable reader at the time...would have understood the law to be."
And again, "judicial power" is "not a forward-looking but a backward-looking authority." In short, apply what the words originally meant.

Ah, no wonder social conservatives like him so much. Looking "backward," applying what constitutional provisions meant "at the time," as Gorsuch urges, just happens to produce decisional results that social conservatives would prefer. It's also no wonder why some of the most socially and politically conservative judges--and politicians and commentators who support them--embrace this so-called "originalism" and "textualism."

So, for example, consider the Constitution's "equal protection of the laws" guarantee. That provision has long been a major battleground between conservatives and liberals. It became part of the Constitution after the Civil War, with the ratification of the 14th Amendment in 1868.

Looking "backward," to what it meant "at the time," would certainly exclude equal rights for gays and lesbians. Certainly, in 1868, the ratification of the 14th Amendment was not meant to protect gays and lesbians. Applying the equal protection guarantee in a "backward""at the time" manner, as Gorsuch urges, would still permit laws that criminally punish private, consensual, same-sex intimacy between adults--let alone same-sex marriage. It would also permit laws that intentionally discriminate against gays and lesbians in employment, housing, restaurants, hotels, etc., etc.

That's right. The Constitution's equal protection guarantee says nothing about gays or lesbians or transgenders. And those persons were absolutely not--looking "backward"--what equal protection was about "at the time" in 1868.

Indeed, Judge Gorsuch's hero, the late Antonin Scalia--the foremost proponent of this so-called "originalist-textualist" approach that Gorsuch has ardently embraced--took exactly that position. The Supreme Court modern era decisions that have extended equal protection to gays and lesbians and same-sex couples were among the most hated and denounced by Scalia. What was Scalia's claimed reason? That the equal protection guarantee did not mean that in 1868. [Scalia on gay rights.]

But this looking "backward" and "at the time" approach goes well beyond allowing discriminatory treatment of gays and lesbians. How about women?

The equal protection guarantee was certainly not intended, in 1868, to insure equal rights for women. It would never have been ratified in 1868 if its purpose was to require that women be treated equally with men. That laws treating women differently and unequally were no longer valid. Looking "backward," equal protection of the laws for women was not what was meant "at the time." In fact, it was not until 100 years later that the Supreme Court finally did give equal protection that meaning and outlaw gender discrimination.

Again, Gorsuch's hero, the "originalist-textualist" Scalia, openly insisted that constitutional equal protection did not apply to women. And why? Because that's not what it meant when it was ratified. [Scalia on women's rights.]

Then there's racial segregation.

Equal protection was certainly not intended to end racial segregation when added to the Constitution in 1868. It would never have been ratified if its purpose was to require that African-Americans be allowed to share the same schools, restaurants, hotels, spaces on the bus and railroads, etc., with white persons. At most, "separate but equal" was as far as equal protection was intended to go "at the time." Indeed, it was not until 1954 that the Supreme Court expanded the meaning of equal protection to abandon "separate but equal' and to outlaw segregation.

So, should the Supreme Court really have looked "backward" and applied the law according to what it meant "at the time"--really? And allowed racial segregation to continue? And should judges today look "backward" and restore the racial segregation that was allowed "at the time" the 14th Amendment was ratified in 1868?

Well, of course, almost all self-avowed "originalist-textualist" judges, politicians and commentators are far too embarrassed to endorse a return to racial segregation. They will attempt to rationalize how their approach would not necessarily support that result. But it does do just that. Just as that "originalist-textualist" approach would deny equal protection of the laws to women. And--as most "originalist-textualist" devotees still do acknowledge--would undo all the gay rights and same-sex rights decisions of the Supreme Court in recent years. That "originalist-textualist" approach, looking "backward," supports a return to allowing racial segregation because it was allowed "at the time."

Of course, the same could be said for so many other constitutional guarantees--e.g., the right to the assistance of counsel, search and seizure protections, free "speech," the right to private sexual choice (even between married couples), etc., etc. Looking "backward" to what they meant "at the time," these were not the rights we enjoy and cherish today as Americans. They were much narrower, much more limited, and didn't mean then what they mean now.

We'll look at some of them in the next post.

But for now, even without looking further, it should be clear that Judge Gorsuch's approach to the law is backward--the term he himself uses--and extreme.

Friday, February 10, 2017

The 9th Circuit's Ruling Against Trump: An Outline

9th Circuit Judges
Canby, Clifton, Friedland
The decision in one sentence:
The Trump administration failed to show that the country was in grave danger unless the Executive Order was allowed to go into effect immediately.



A step by step outline of the 9th Circuit Decision:
  • What does President Trump's executive order do? It suspends for 90 days the entry of non-citizens from seven countries; suspends for 120 days the United States Refugee Admissions Program; and suspends indefinitely the entry of all Syrian refugees.
  • Do the states (Washington and Minnesota) have a right to challenge the executive order? YES. The states have "standing" because non-citizens who live and work in those states will be seriously harmed by the executive order, and so will educational, business, and other institutions in those states that rely on those non-citizens.
  • Does the President have the power to issue such an executive order? YES. On matters of immigration and national security, the President has wide-ranging authority, and the judicial branch should almost always defer to presidential judgments in these matters.
  •  But is the President's executive order entirely immune from judicial review? NO. To quote from the decision, the "fundamental structure of our constitutional democracy" provides for a judicial check on the other branches of government to insure that they do not violate the Constitution, and executive orders such as this one are no exception.
    District Judge Robart
  • What did the trial judge do in this case? The trial judge, Federal District Court Judge James Robart (appointed by President George W. Bush) issued a temporary restraining order (TRO)--i.e., a temporary suspension of the enforcement of the executive order--until there is a full hearing to determine whether the executive order is constitutional.
  • What specifically had to be decided when the Trump administration appealed from that TRO? The Federal Court of Appeals for the 9th Circuit had to decide whether to overturn that temporary restraining order (TRO), not whether the executive order is ultimately constitutional or unconstitutional.
  • What determines whether the TRO should be overturned on appeal as sought by the Trump administration? That depends on the answer to 2 questions: 1) whether the Trump administration can show that it will probably win after a full hearing on the constitutional merits of the executive order, and 2) whether it can show that the country is in grave danger because of the TRO (i.e., if the executive order is not in effect).
  • What did the 9th Circuit decide on those 2 questions? The 9th Circuit held that 1) the Trump administration failed to demonstrate that it would probably win the case on the constitutional merits (i.e., the court found that the states' due process and non-establishment of religion claims are substantial), and 2) the Trump administration failed to demonstrate that the TRO placed the country in grave danger of a terrorist attack.
  • What precisely was the 9th Circuit's order? In a unanimous 29 page per curiam (for the court) opinion, a 3-Judge panel of the 9th Circuit denied the Trump administration's "emergency motion" to undo the TRO.
  • Who were the 9th Circuit Judges who unanimously decided this appeal? The 3 judges who decided this appeal are: William Canby (appointed by President Carter), Richard Clifton (by George W. Bush), and Michelle Friedland (by Obama).
  • What happens next? There are several possibilities. The Trump administration could ask the entire 9th Circuit (en banc) to hear this appeal; the administration could ask the Supreme Court for an emergency ruling to overturn the TRO [That would go to Justice Kennedy who would almost certainly ask the entire Supreme Court to make that decision.]; or the administration could simply return to the district court judge who originally issued the TRO for a full-blown hearing on the constitutional validity of the executive order.
Well, hope that helps.

[What I did not mention originally is a possible option outside the scope of these legal proceedings. That, of course, is for the Trump administration to simply go back to the drawing board and more carefully craft a new executive order which doesn't raise as many legal questions as the current one. VMB 2/11/17]

Sunday, February 5, 2017

Court of Appeals Nominee Rowan Wilson: Open Questions

The confirmation hearing for Governor Andrew Cuomo's latest pick for the Court of Appeals, the state's highest court, is scheduled for tomorrow, Monday, February 6, 2017. The Committee's Chair, Senator John J. Bonacic, has been conscientious, fair, well-prepared, and non-partisan in presiding over the hearings for Cuomo's previous 6 nominations.
[A far cry from the circus of partisanship and inanities that have characterized the confirmation hearings at the U.S. Senate for Supreme Court nominees.]


Nevertheless, given the mere one hour set aside for the Wilson hearing, it would seem extremely difficult for the Committee to get any real insight into the kind of Judge that Rowan Wilson might be. At the very least--the very very least--it would be good to know what his views are about the judicial role, especially that of a judge on a state's high court and, specifically, on the New York Court of Appeals. Indeed, to know how much thought he has given to that.

There are different views on those matters. In fact, conflicting views. And those different, conflicting views result in very different, conflicting modes of decision-making and, in turn, different, conflicting decisions.

Beyond that, some of the views often espoused about the judicial role, and often declared by judicial nominees, are...to be kind...pure nonsense. Most notably, for example, that judges don't or shouldn't make law. Whether we call it law or rule or policy or precedent or some other name, the unquestionable, irrefutable truth is that judges, especially on high courts such as the U.S. Supreme Court and the NY Court of Appeals, make law.

They necessarily do so because the very cases they decide present unresolved issues of law, conflicting laws, competing "interpretations" of the law, legitimate legal arguments on both sides, etc. The judges must choose between the possibilities and, in doing so, they set precedent--i.e., a law (or rule or policy or whatever the palatable name)--that henceforth governs all the cases that follow and the actions of the other branches.

The great judges in our history all recognized and acknowledged that judges necessarily make law. Cardozo didn't even think it a question! As he once put it: "I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. I take judge-made law as one of the existing realities of life." Holmes, Frankfurter, and other greats of American law were also explicit on that point.
[Contrast that with--I'm trying to be kind--the pure nonsense we recently heard from President Trump's nominee to the Supreme Court: "It is the role of judges to apply, not alter, the work of the people’s representatives."
There would, of course, be no landmarks in American law if the great justices of the past adhered to that view. Every single landmark that Americans cherish did exactly the opposite of what Trump's nominee espoused.]

But to focus specifically on the nominee for New York's high court, we must do so realizing that there seems little in Rowan Wilson's public background that provides a good sense of his views about the judicial role or, even more specifically, of his view of the role of the Court of Appeals. At least 2 basic questions come to mind. The first is about judicial philosophy or, at its most elemental, how should a judge make decisions? The second is about the Court of Appeals. In particular, how should a judge on New York's high court decide cases in light of the Court's position in our federal system of government, and as the final arbiter of the state's law?

Rowan Wilson has no previous judicial experience. That is not in itself any problem. (See The No Judicial Experience Bugaboo.) But it does mean that he has no judicial track record. In fact, he has no record as a government official. So, unless he reveals as much at the confirmation hearing--volunteering it or responding to inquiries--we will not know much about Rowan Wilson that is really essential to knowing what kind of a Judge he may be.

JUDICIAL PHILOSOPHY
Does Rowan Wilson believe in "originalism?"
Does he believe that constitutional provisions and statutes should be limited to their specific meaning at the time of their enactment--and only that?
So, "equal protection" was originally intended to protect the newly freed Black slaves. It was NOT intended to protect women, let alone gays or non-marital children or anyone else, and it should be applied in accordance with that original intention. [Yes, that is what originalists like Justice Scalia believed.]
Moreover, as for Blacks, it was NOT intended to prohibit racial segregation. Separate but equal was fine.
Also, free speech would not include "sedition" [as in the Alien and Sedition Laws] or blasphemy or casual vulgarity.
And as for "cruel and unusual" punishments, the 8th Amendment was only intended to forbid burning at the stake, dismemberment, and the like. But gratuitously painful punishments were not themselves prohibited.
Etc.
Or does he believe in a "living Constitution" and laws?
Does he believe that specific original intentions should give way to more contemporary views about the same concepts?
Hence, "equal protection" should be extended to prohibit discrimination based on gender and birth and sexual orientation, etc?
"Equal protection" should also be construed to prohibit racial segregation?
And "cruel and unusual" should be construed to prohibit all punishments considered barbaric in today's civilized society--not just crucifixion, etc?

Does Rowan Wilson believe in "textualism" or "strict construction?"
Does he believe that constitutional provisions and statutes mean only what is explicit?
So, there is no right to privacy, or right to choose, or right to know your rights before being interrogated, or right to have a lawyer if you can't afford one when you're being prosecuted? None of those are explicit.
Likewise, there is no right to get married or be intimate with your spouse or even kiss your spouse, or right to be a parent, or right to raise your children or even play with them, or right to have a friend, or right to join a group with friends, etc., etc., etc. Not explicit.
And, because the 14th Amendment (which is the provision that guarantees "due process" against state violation) does not mention free speech, or religious freedom, or search and seizure, or right to counsel, or any other right in the Bill of Rights, does that mean that those rights should not be protected against state governments?
So too, because the Constitution protects free "speech," does that mean that only actual speaking is protected, but not any other forms of peaceful expression?
Etc.
Or does he believe that it is the underlying principles that should be protected?
Does he believe that the overarching principles and purposes of constitutional and statutory provisions should be given effect?
Hence, fundamental rights--those that are implicit in the concept of "ordered liberty" [to use Cardozo's eternal phrase] and the essential ingredients of being free--are protected by the Constitution's guarantee of "liberty," whether or not such rights are specifically mentioned.
That, of course, would also include the most intimate and private choices in one's personal and familial life, which are nowhere mentioned in the Constitution.
Similarly, rights such as free speech are to be construed to include more than just talking, the right to counsel more than being able to have a lawyer but only if you can afford one, a fair trial to include (the unmentioned) proof beyond a reasonable doubt, and "cruel and unusual" to also include punishments that are grossly excessive.
Etc.

Does Rowan Wilson believe that the judiciary should defer to the other branches?
Does he believe that the courts should approve whatever the executive and legislative branches do, except when clearly unconstitutional?
So if there is a legitimate question about the validity of legislation or of executive action, the courts should approve what the other branches have done; they should not interfere unless the other branches did something that is unquestionably invalid.
Accordingly, judicial interpretation and application of the law should mirror what the other branches have done, unless their actions are entirely irreconcilable with constitutional and other legal requirements.
Or does he believe that the judiciary should give constitutional rights and other commands their fullest possible effect?
Does he believe that the judiciary's interpretation and application of constitutional rights should be independent of what the other branches believe or have done? Independent of what the other branches prefer or what is popular?
So that constitutional rights and commands are vigorously enforced.
So that intrusions on constitutional rights and commands are only tolerated when justified by the most compelling government and societal needs.

These are among the most important questions for a nominee to a high court. At the very least, they are questions that a judicial nominee ought to have thought about. And they are questions that go to the very heart of a judge's role--answers to which those who confirm a nominee ought to be satisfied.

Then there is the nominee's view and understanding of the role of a state's high court and, specifically, of the Court of Appeals itself. Additionally, the nominee's knowledge of the historic landmarks of the Court, and of the body of case law that constitutes the Court of Appeals' jurisprudence. Briefly, for example:

How familiar is Rowan Wilson with the Court's landmark decisions and the jurisprudence that they underscore?
Is he familiar with the Court's precedents in areas as fundamental as free speech and press, right to counsel and search and seizure, due process and personal privacy, and so many others?
That these precedents are separate, independent, and different from those of the Supreme Court?
That these precedents form the foundation of much of Court of Appeals--and therefore New York--jurisprudence?
That these landmarks are a large part of the reason that the Court of Appeals has historically been one of the nation's finest and most influential courts?

How familiar is Rowan Wilson with the Court's tradition of independent state decision-making? What are his views about it?
Is he familiar with the Court of Appeals' tradition of protecting constitutional rights and liberties independent of U.S. Supreme Court decisions?
That the Court's historic protection of constitutional rights and liberties, separate from and beyond Supreme Court precedents, has proceeded under the Court's view of its responsibility to independently construe the state's law?
That when confronted with arguments based on Supreme Court precedents, many of the Court's greatest Judges were explicit in stressing the Court of Appeals' duty of independent adjudication.
As Chief Judge Lehman put it over 70 years ago, when the Court disregarded Supreme Court precedent to the contrary:
Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. (People v. Barber, 1943)
Lehman's successors--including Chief Judges Fuld, Breitel, Cooke, Kaye, and Lippman--all echoed the same.
Is Rowan Wilson familiar with that traditional concept of the Court of Appeals' independent duty?
Is he aware that this "judicial federalism" is recognized and practiced by most of the nation's finest state high courts and, in fact, repeatedly affirmed by the Supreme Court itself as a basic attribute of our federal system of government?
Is he aware that the Court of Appeals has historically been a national leader in independent decision-making?

All of these foregoing matters are crucial to the work of a judge on a high court--whether the supreme court of a state or of the United States. And more specifically, they are crucial to the work of a Judge on New York's Court of Appeals.

I wish we had Rowan Wilson's answers to these questions and had some sense of his views on the judicial role, on judicial decision-making, and on the role of the Court of Appeals. I do wish him well and, if I had to guess, I think he will do very well on the high court.
Based on his education, experience and achievements, he certainly seems to be more than capable of being a very fine Judge. But without some answers to the questions I've raised, it's really anybody's guess what kind of Judge he'll be.

Saturday, January 21, 2017

Want Scalia-type Justices? Really? (Part 4: Punishment)

Here's wishing the newly inaugurated President lots of success in doing what's best for our country.

If Scalia's view of gay rights--"homosexual sodomy," as he insisted on putting it--was anachronistic and offensive, his positions on crime and punishment were downright medieval.

Yes, this may sound like over-the-top criticism. But even self-proclaimed Scalia admirers, at least most of them, would find the positions he advocated to be startling. Indeed, very few Scalia enthusiasts are likely aware of his actual record on legally acceptable punishment. They are almost certainly unaware of his extreme views on what constitutes "cruel and unusual."

Let's review Scalia's actual record. The positions he actually advocated. And again, let's consider whether the supposed Scalia fans--the newly inaugurated President, his prospective Supreme Court nominees, and the Senators who will vote on confirmation--are really fans of that, or would be willing to admit it.

Scalia insisted that excessive punishments, no matter how extremely excessive, were perfectly constitutional. In fact, he insisted that the Constitution's "cruel and unusual" prohibition only prohibited "flaying alive" and similarly barbaric punishments. Nothing else.

Yes, you read that correctly. (I wish I were kidding.)

Let's first look at Scalia's major judicial writing on "cruel and unusual punishments."

Harmelin v. Michigan (1991)
This case involved a state law that mandated life imprisonment, without the possibility of parole, for possession of a large quantity (6.5+ grams = ~1 1/2 pounds) of cocaine. By a 5-4 vote, the Court upheld the sentence.
Justice Scalia wrote the opinion for the Court's majority.

To be precise, however, only 6 paragraphs of Scalia's 36 page writing in Harmelin constituted the majority opinion. As for the rest of what Scalia wrote, only Justice Thomas signed on.

Of the remaining 7 Justices on the Court, 3 voted in a separate concurring opinion written by Justice Kennedy. They concludd that the life sentence for that drug crime was not too harsh. Together with Scalia and Thomas, that made a majority of 5 votes to uphold the sentence, for one reason or another. The remaining 4 Justices dissented. They argued that that the sentence was too harsh. In sum, 7 of the 9 Justices--the 3 who concurred in the result and the 4 who dissented--disagreed vehemently with all but a few paragraphs of Scalia's 36 page opinion.

Why? What was it that Scalia wrote in those 36 pages that 7 of the 9 Justices would not join?

Other than the 6 paragraphs that garnered a 5-4 majority, Scalia devoted his 36 page opinion to his view that harsh sentences, regardless of how excessive, did not violate the Constitution. Yes, the 8th Amendment explicitly prohibits "excessive bail" and "excessive fines." But as for "punishments," the 8th Amendment only prohibits what is "cruel and unusual." And in Scalia's view, even the most excessive punishments are not covered by "cruel and unusual."

Here are his own words:
[T]here is no cause to believe that the provision was meant to exclude the evil of a disproportionate punishment. [The opposite] argument has force only for those who believe that the Constitution prohibited everything that is intensely undesirable -- which is an obvious fallacy.
[My emphasis added. ("No cause" at all? And an "obvious" fallacy?)]
He further explained his rather stingy reading of the 8th Amendment's prohibition:
[A] disproportionate punishment can perhaps always be considered "cruel," but it will not always be (as the text also requires) "unusual."
He then argued that the Court's previous decision on the subject, which had held exactly the opposite of his view,
was simply wrong; the Eighth Amendment contains no proportionality guarantee.
[T]here is no proportionality requirement in the Eighth Amendment.
[My emphasis added.]

Along the way, in support of his position, Scalia cited with approval a decision that upheld a sentence of 40 years imprisonment for the possession and sale of marijuana. He also approvingly cited another decision that upheld a life sentence for a third minor offense--i.e., the fraudulent use of a credit card to obtain a mere $80 worth of purchases. Scalia even refused to concede that a life sentence imposed for a parking violation would be unconstitutional. Instead, he insisted that such extremely excessive punishments would be rare and that, even if they were adopted, the choice of the voters or legislators should be respected.

Again, 7 of the other Justices refused to join those sections of Scalia's opinion in Harmelin and would only sign onto a different 6 paragraphs of what he wrote. Justice Thomas was alone in agreeing with Scalia's entire 36 pages.

So, one might ask, what, according to Scalia, does the 8th Amendment prohibit? He did discuss that in exhausting detail in that 36 page opinion. The "cruel and unusual" prohibition, in his view, prohibited "only certain modes of punishment." He repeated that several times: "the clause only outlawed certain modes of punishment."

So what exactly are those "certain modes" that are prohibited by the Constitution? Scalia explained what he meant by quoting some early 19th century commentators. Those commentators had written that the "cruel and unusual" prohibition
'would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.'
[And]
'various barbarous and cruel punishments inflicted under the laws of some other countries...furnish sufficient reasons for this express prohibition. Breaking on the wheel, flaying alive, rending assunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution.'
[My emphasis added.]
One might well agree with those commentators. The "cruel and unusual" prohibition would certainly seem, at the very least, to prohibit such punishments. But according to Scalia in Harmelin, such "'horrid modes" were the only punishments that were prohibited by the 8th Amendment. Not to be misunderstood, Scalia proceeded to dismiss the views expressed by other commentators of the same time period, as well as in judicial decisions, that "cruel and unusual" referred to more than that. Those contrary views, according to him, were either wrong or irrelevant.

Now, someone might suggest that Scalia was overstating his position. Maybe he was only emphasizing his real point that the Constitution does not prohibit punishments just because they are excessive. Well, no. Scalia later made clear that he meant exactly what he wrote in Harmelin. For example, there was the lethal injection case 17 years later.

Baze v. Rees (2008)
In this case, a 7-2 majority of the Court upheld the lethal injection procedure used by Kentucky and other states. Writing for the Court, Chief Justice Roberts explained that punishment would be unconstitutionally "cruel and unusual" if it presented an "objectively intolerable risk" of "severe pain," and if that pain could be "significantly reduce[d]" by a "feasible, readily implemented" alternative. In short, the Constitution is violated if there is no "legitimate penological justification for adhering" to that currently used painful punishment.

Justices Scalia and Thomas agreed that the lethal injection at issue was valid. But they refused to join the Chief Justice's opinion. They emphatically rejected his formulation for "cruel and unusual."

Scalia, and Scalia alone, joined Thomas's separate concurring opinion to express their shared view about the 8th Amendment. The "cruel and unusual" prohibition only prohibits punishments with
the defining characteristic of burning at the stake, disemboweling, drawing and quartering, beheading, and the like...[that] were designed to inflict torture as a way of enhancing a death sentence; [that] were intended to produce a penalty worse than death.
[My emphasis added.]
That's right. Just like Scalia had written in Harmelin, the Constitution only prohibits punishments like  "maiming, mutilating" and "drawing and quartering, beheading, and the like." Today, with Scalia gone, Thomas is the only Justice remaining who embraces that extremely constricted view of "cruel and unusual punishments."

Do the avowed Scalia admirers, including the supposed Scalia-types that are being touted as prospective Supreme Court nominees, share that extremely cramped view of the 8th Amendment? Are they even aware that Scalia had such a view?

Would they--the new President, the Senators, and the nominees--be willing to admit and defend that view at Supreme Court confirmation hearings? Excessive punishments, even extremely excessive ones--fine? Painful punishments, even unnecessarily painful, except for disemboweling and the like--fine? I guess we shall soon see.

Before concluding, mention should be made of another one of Scalia's views, expressed in Atkins v. Virginia (2002), about executing the severely mentally disabled. By a 6-3 vote, the Court held in that case that the death penalty imposed on a defendant who had a 59 IQ was unconstitutional. Scalia disagreed. He joined the dissenting opinion of Chief Justice Rehnquist disagreeing with the Court's decision. But Scalia also wrote a separate opinion himself to add his own protest that
mental retardation does not render the offender morally blameless [and]
that society’s moral outrage sometimes demands execution of retarded offenders.
Then there's the related matter of torture. Scalia repeatedly insisted that government's torturing of an inmate, a prisoner, or a detainee does not violate the Constitution. His reasoning? The Constitution only prohibits "cruel and unusual punishment." So unless torture is an explicit part of a judicially imposed criminal sentence, it is not per se "punishment" and thus, according to Scalia, it is not constitutionally prohibited. (Once more, not kidding.)
(See e.g., Antonin Scalia's Case for Torture, The Atlantic [2014]; Justice Scalia on the Record, 60 Minutes' Lesley Stahl Interview [2008].)

Then there's the execution of someone who is innocent. Scalia actually dissented when the Court ordered a federal trial judge to consider a substantial claim of innocence by a murder defendant who might have been wrongfully convicted and sentenced to death. (In re Davis [2009].) Scalia-- in an opinion joined only by Thomas-objected to the Court's ruling. Why? This is what he wrote:
This 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.
That position was nothing new or out of the ordinary for Scalia. It was actually just a repetition of a view  he had advocated for a long time. So, for example, 16 years earlier, in Herrera v. Collins (1993), he wrote a separate concurring opinion to express his view that:
There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.
Well, we could go on. But hopefully the point is well made. Scalia had some....uh...very curious, even frightening, views about punishment and what the Constitution permitted. Do his self-proclaimed admirers really admire those views? Really agree with them? Are they even aware of his views? Well, that is Scalia's actual record.

Next in this series, we'll take a look at yet another aspect of Scalia's actual record.