GETTING IT WRONG ABOUT “GETTING IT RIGHT” The Remarkable Lavish Praise by Justices Thomas and Scalia of Radical Liberal Judicial Activists — PART III

On television, Justices Thomas and Scalia lavishly praise extremist liberal activists. For those who eviscerate the Constitution, such praise is unjustified on the merits as well as contradicted by the scathing writings of Thomas and Scalia themselves.        CONTINUED FROM Part II

NOTE: It is the reader’s choice whether to consult or disregard the links below. The main goal here is to be easily understood, while providing proof for those who might think that what follows is fiction. This is written to enable easy reading without looking at the links.

 III.   Specific Value and Policy Judgments: Capital Punishment  

Few subjects exemplify the themes discussed here better than the crusade to protect murderers and rapists.

For decades, various justices have virulently and surreptitiously (43) opposed capital punishment. For example, with outright contempt for the Constitution’s clear language, Justices Brennan and Marshall asserted that it bans capital punishment altogether. Justice Blackmun later joined them (1147), “[a]lthough most of the public seems to desire, and the Constitution appears to permit, the penalty of death.” Pretending to adhere to precedent when his vote made no difference, but having “relied on my own experience,” Justice Stevens asserted (17) the death penalty is “patently… violative” of the Constitution.” Justice White (joined by Stewart, Blackmun and Stevens) arrogantly declared that the document empowered justices to force upon society their “own judgment” regarding the “acceptability” of capital punishment.

The judicial stranglehold on self-government was tightened in 2008, when Justice Kennedy (joined by Breyer, Ginsburg, Stevens and Souter) boasted that the Constitution gave any five justices the power to impose their “independent judgment” regarding any punishment’s “acceptability,” a boast that Justice Scalia declared would have been “laughed to scorn” by the Framers. Although politically unable to completely abolish the death penalty, this quintet hijacked from the People the power to decree a value judgment, nowhere in the written Constitution, that capital punishment must be “limited” by a fantasized “necessity to constrain” its use.

Among the “conjurer’s tricks” Thomas complained of (and contrary to judicial pretensions of clarity) has been what Justice Scalia called the “fog of confusion” used in the “campaign against the death penalty.” Just as in the national security case, Scalia long ago denounced other justices who “cause[] state legislators to pull their hair” by disparaging what previously they had “encouraged, if not indeed coerced … administering a bait and switchcapital sentencing jurisprudence.” Scalia also has criticized the “hollow … assurance[s]” of justices who “purport” to make narrowly confined decisions fully realizing  they have sweeping implications that will be applied in future cases (a point validated, incredibly, by The New York Times). Last year, Scalia (joined by Thomas) berated fellow justices for “insult[ing] the reader’s intelligence” by claiming their “radical … creat[ion of] a monstrosity” was “limited,” which “no one really believes.” Indeed, Scalia has not hesitated to declare “I-told-you-so.

A few examples show how “bait and switch” justices gradually expanded their “limited” rulings.

After declining to protect allegedly retarded murderers from execution, they did. They banned the death penalty for nearly 18-year-old murderers after refusing to do so. Then they barred life-without-parole sentences for under-18 recidivists who commit depraved violence short of murder. Next, they banned not just the death penalty but mandatory life-without-parole for murderers under 18. After negating capital punishment for rape of “adults,” they banned it for repeatedly raping little girls.

And they created an unimaginable “constitutional right” to commit punishment-free murder and rape!

All this without a single word alteration in the written Constitution!

In addition to the bait-and-switch ruse,the dishonesty of these justices includes their endless pretense of deciding cases based upon an alleged national consensus heedless of likely recidivism, to keep alive convicted murderers and rapists – while simultaneously proclaiming the existence of a consensus to be irrelevant to their own superior “independent judgment,” i.e., personal values.

When majority justices usurped the power of the states by granting protection to allegedly retarded rapist-murderers at the expense of victims, Scalia (joined by Thomas and Rehnquist) spotlighted


what really underlies today’s decision: pretension to a power confined neither by the moral sentiments originally enshrined in the Eighth Amendment (its original meaning) nor even by the current moral sentiments of the American people. … (The unexpressed reason … is presumably that really good lawyers have moral sentiments superior to those of the common herd, whether in 1791 or today.) The arrogance of this assumption of power takes one’s breath away. And it explains, of course, why the Court can be so cavalier about the evidence of consensus. It is just a game, after all.”



Answering five justices’ assertion of an “irreversible” consensus to ban capital punishment for nearly-18-year old convicted murderers who abduct, tie up and throw terrified women off bridges to drown while conscious, Scalia (joined by Thomas and Rehnquist) charitably characterized the consensus claim as “flims[y]”; and accused the majority of only pretending to care about consensus, because “the real [driving] force” is these justices’ “own judgment” that murderers younger than 18 must never be executed. (Of course, in saving murderers’ lives, these justices stripped from the law-abiding the right to decide how best to protect their own lives.) Scalia suggested that, for the majority justices, “[w]ords have no meaning.” He added that they had “usurp[ed] role of moral arbiter” and asked: “By what conceivable warrant can nine [really five] lawyers presume to be the authoritative conscience of the Nation?”

Later, justices gave enhanced occupational protections to those they care about most, by proscribing not just capital punishment but even life without parole for any violent non-homicide recidivist under age 18. In response to the claim that such punishment violated their “independent judgment” as to what was “acceptable,” Thomas (joined by Scalia) declared: “I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing … gives us that authority.”      

            Just last year, five pro-murderer justices further upped the ante by suddenly announcing that their values would not tolerate mandatory life-without-parole sentences for any murderers under age 18. (Those objecting to terming justices “pro-murderer” should read this.) Thomas (joined by Scalia) again protested: “nothing in the Constitution grants the Court the … even less legitimate … authority it exercises … based on nothing more than the Court’s belief that ‘its own sense of morality pre-empts that of the people and their representatives.’”      

In this vein, contemptuous of little girls and deeply devoted to the welfare of the most brutal murderers and rapists, a bare majority of justices concocted an unlimited “Constitutional right,” undreamed of by the Framers, for huge powerful men to rape little girls as brutally and as often as possible without facing the death penalty, based on a purported national consensus to protect these men. Thomas and Scalia joined Justice Alito’s outcry against justices who 

prohibit[ed] … the death penalty for … raping a child … no matter how young …, no matter how many times …, no matter how many children the perpetrator rapes, no matter how sadistic[ally] …, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be. 


Later, Scalia resignedly added: “to tell the truth … the views of the American people … were … irrelevant to the majority’s decision….” That’s a polite way of accusing the majority of not telling the truth, considered “lying” by the gauche. Regarding justices’ solicitude for the most violent “juvenile” convicted criminals, Thomas (joined by Scalia) declared that “the Court does not even believe its pronouncements”  supported by mere “window dressing that accompanies its judicial fiat.” Finally, last year, Scalia joined Alito, who declared that all consensus “pretense” had been “discarded.” 

            Some justices are so protective of brutal killers that they invented “rights,” which most Americans would consider unthinkable, for foreign terrorists on foreign soil. Scalia (joined by Thomas, Alito and Roberts) protested that this “will almost certainly cause more Americans to be killed.” Earlier, Scalia (joined by Thomas and Rehnquist) denounced his colleagues’ “judicial adventurism of the worst sort” in creating “a monstrous scheme in time of war … in frustration of our military commanders’ reliance upon clearly stated prior law[.]”   

Torturing Victims to Protect Premeditated Rapist-Murderers

             Shortly before expressing high praise for fellow justices, Scalia (joined by Thomas) objected to their resort to “lawlessness” and “license” in order to “effectively reduce [death] sentence[s], giving [defendants] many more years to live, beyond the lives of the innocent victims whose [lives they] snuffed out.” Earlier, five justices employed an utter absurdity to save Marcus Wellons, who “did not dispute” committing rape-murder in 1989. Scalia (joined by Thomas) noted that “Wellons has already outlived his [15-year-old] victim by 20 years.” (And that’s on top of the 34 years of life he had before the rape-murder!)

            Thus, after they commit murder, barbarians are often kept alive for periods longer than their victims even had a chance to live. To achieve this, as noted, fanatic justices have no qualms about torturing victimized loved ones to protect torturers.

            Anyone finding this language too harsh should consider Mark Moseley. He was a star National Football League kicker for sixteen years, a pro-bowler, a most valuable player and a record holder. That did not spare him. If justices can torture a man of such prominence, is any ordinary person safe from their predations?

            In 1979, at the height of his fame, Moseley’s sister, Pamela Moseley Carpenter, was brutally selected, stalked, raped, beaten and murdered by a recidivist parolee, repeat rapist Johnny Paul Penry, whose life was saved by multiple justices. To do so, they subjected the Moseley family to 28 years of agony, including three trials, three death sentences, endless appeals and two Supreme Court reversals by pro-murderer justices.

            Following a Supreme Court execution stay 21 years after the rape/murder, Moseley bitterly expressed how “angry” he was “at the system letting us down,” adding: “this is killing my mom and dad.” After another seven years of torture, the Moseleys and prosecutors surrendered, agreeing to keep alive this brutal barbarian sentenced to death by not one, not two, but three juries who had considered the evidence.  

           Key facts must be emphasized.

  • Penry’s guilt was never in doubt.
  • Outside the world of pro-murderer fanaticism, there can be no question that interminable delays to spare the lives of the clearly guilty cause severe additional agony for victimized surviving loved ones, in effect cruelly punishing them for the “crime” of already having been traumatized by an unspeakably savage loss. They have been needlessly and repeatedly compelled to relive the barbarity and to fear that the barbarian will be released or escape to commit new barbarity. Shockingly, it is far from unusual for cases to drag on for twenty, thirty and even forty years.                                                        
  • Unlawful torture, as defined by federal statute, includes the intentional infliction of “severe…mental pain or suffering.”  The Supreme Court itself has declared that “a punishment is barred by the Eighth Amendment [even when there is] no physical mistreatment, no primitive torture[, if it] subjects the individual to … ever-increasing fear and distress.” While it cannot be said that the primary objective of the pro-criminal justices is to torture victims, they surely have shown a “depraved indifference” to the victim agony they cause. Indeed, some have openly expressed lack of concern amounting to disdain for suffering victims.              
  • Pro-murderer and virulently anti-victim justices understand the mental cruelty of inflicting “inhumane delay.” However, their resulting concern, astonishingly, is to reward the brutal murderers who themselves most successfully resort to all ploys to seek endless delay.          
  • Penry’s retardation claim was given credence despite uncontested evidence that he was a repeat paroled rapist who had made a premeditated, well-reasoned, intentional decision to (1) rape Carpenter and (2) murder her to avoid being “squealed on” and sent “back to the pen.” Penry clearly and fully understood his brutal crime and how to try to avoid being caught. Yet justices contemptuous of victims spent years professing to take seriously the claim that Penry was “mentally retarded.” If “getting it right” means using any deceptive pretext to impose unpopular judicial values, perhaps “retardation” usage applies. But if “getting it right” means applying clearly understood language, then the “retardation” claim is grossly disingenuous, illustrative of the shams resorted to by “honest” anti-death penalty justices.     
  • Mark Mosely’s fame was unique. Not unique at all, tragically, is the last 40 years’ ruthless torture of victims’ loved ones by callous self-righteous justices devoted to murderers.

            Torturing victimized survivors by needlessly but deliberately stretching out cases for multiple decades is not the only cruelty inflicted by Justices devoted, above all else, to the welfare of barbaric rapists and murderers. Even worse than torturing survivors of barbarity already committed, these justices have invented a so-called “constitutional” right for the most depraved violent criminals to murder and torture new victims free from the fear of being punished at all, thus virtually guaranteeing preventable violent crimes.

            Although the most fanatically pro-criminal justices and their acolytes would certainly disagree, few crime victims are likely to dissent from the view that one of the great unreported and largely unknown scandals of what is called the “justice” system is the brutal torture of violent-crime victims – by the very recipients of lavish public praise as “good” and “honest” by Justices Thomas and Scalia.

            Significantly, the victims are tortured by justices hypocritically claiming to act in the name of “compassion” and “mercy” – for convicted murderers of course! 

            Shameless judicial hypocrisy deserves separate treatment, in Part IV. 


              Lester Jackson, Ph.D., a former college political science teacher, views mainstream media truth suppression as essential to harmful judicial activism. His recent articles are collected here.


 Copyright ©: 2013 Lester Jackson, Ph.D.

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