Justice Scalia just went all-in on the death penalty.
Scalia has been worried about the direction of the Court’s death penalty jurisprudence for years. The Court’s four Democratic appointees either favor striking it or limiting it into effective nonexistence, and while Justice Kennedy is very conservative in other areas, he has provided a backbreaking vote against the death penalty in multiple settings. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (no death penalty for crimes committed under age 18); Kennedy v. Louisiana, 554 U.S. 407 (2007) (no death penalty for sexual assault of a minor); Hall v. Florida, 134 S. Ct. 1986 (2013) (Florida cannot impose death penalty on those with IQ under 70 and therefore can execute very few, if any, native Floridians). Justice Scalia even publicly admitted in interviews this summer that he was worried five votes existed for abolition of capital punishment. See, e.g., ABA Journal Article. In this context, it also would not be surprising if he feared an erosion of capital punishment in the lower courts, spurred by Justice Kennedy’s obvious fence-sitting. He lost the war on same-sex marriage through a thousand district court cuts, and he could well lose the capital punishment war the same way.
But Scalia delivered a moderately strong signal to those lower courts to stay the jurisprudential course in Kansas v. Carr, No. 14-449. Kansas v. Carr legally addresses whether a trial court must instruct a jury that it need not find mitigating factors beyond a reasonable doubt. Id., at *1-2. But factually, it addresses a brutal and horrific crime spree by brothers Reginald and Jonathan Carr, who raped and murdered an innocent family in beyond-animal fashion. Justice Scalia described their crime spree in the most vivid, gut-wrenching detail I have ever seen in an opinion at any level of the federal courts. The fact section of the opinion–which served little or no legal/analytical purpose–spans over five pages of the slip opinion. Id., at *2-6. He spends two pages of the opinion alone describing the rape itself. Id., at *3-4. Scalia’s opinion states that the trial court did not err and that the Carr brothers may be put to death; seven other justices (all except Sotomayor) joined the opinion.
I believe that this opinion accomplished more than it initially seems. On the surface, the graphic facts section removed any qualms the reader has about executing the Carrs–even the most liberal reader is left comfortably assured that the Carrs are genuinely evil and must die. But more than that, Justice Scalia secured the votes of Justices Kennedy, Ginsburg, Breyer, and Kagan–including for his facts section. This is a stronger signal than it seems. Death penalty facts sections are a known ideological battleground, and one that has received above average attention this year. See Horowitz, As Supreme Court Clerk, Ted Cruz Made Death Penalty His Cause, NY Times. And a death penalty opinion written by a more neutral or anti-capital-punishment justice typically does not recount the subject crime in any detail. See, e.g., Hall v. Florida, 134 S. Ct. at 1990 (entire description of underlying kidnapping, rape, and murder spans 59 words). So, Court watchers (and certainly federal judges and their clerks) know on some level that death penalty facts sections have meaning.
In this context, Scalia’s Kansas v. Carr opinion has to be read as a bold gamble. Richard M. Re, a brilliant young professor at UCLA Law, has described the Supreme Court’s signaling mechanisms, means other than opinions through which the Court indicates to lower courts the paths they should take. See Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861, 1878; see also Re, More Supreme Court Signals. Scalia’s opinion is a signaling mechanism–here, it is a show of strength to lower courts that he could command eight votes for the facts section. Holding that kind of majority is never guaranteed in a death penalty case, and just because the justices agreed with Scalia on the legal questions, they did not have to sign onto his recounting of the facts. Cf. Flood v. Kuhn, 407 U.S. 258 (1972) (multiple justices agreeing with Justice Blackmun’s conclusion but refusing to join his lengthy factual history of baseball). Scalia’s maneuver could have backfired–either if word leaked out that a reticent liberal justice forced him to tone down the opinion, or God forbid, if multiple justices joined only his conclusion and pointedly refused to join his factual section. He gambled that he could hold together a full majority for his facts section, and he did.
Scalia may not ultimately preserve the death penalty, and he certainly will not do it with a section of Kansas v. Carr. But for now, he has stanched the bleeding for his ideological cohort in the capital punishment signaling fight. In the process, he has likely brushed any lower courts that believed they were reading anti-death-penalty tea leaves a few feet back off the plate.