# I told you Alito was an asshole ... **URL:** \ **Category:** The BBQ Pit\ **Created:** [June 23, 2006, 12:36pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848 "2006-06-23T12:36:19Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![EddyTeddyFreddy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eddyteddyfreddy/32/18796_2.png) [@EddyTeddyFreddy](https://boards.straightdope.com/u/EddyTeddyFreddy)\ **Post date:** [June 25, 2006, 4:44pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/41 "2006-06-25T16:44:20Z")
Hmph. In _my_ space-time continuum you’re all just a bunch of random electrons and you disappear when I shut the computer down. ---
**Author:** ![saoirse](https://avatars.discourse-cdn.com/v4/letter/s/5daacb/32.png) [@saoirse](https://boards.straightdope.com/u/saoirse)\ **Post date:** [June 25, 2006, 5:07pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/42 "2006-06-25T17:07:47Z")
> [@EddyTeddyFreddy](#): > > Hmph. In _my_ space-time continuum you’re all just a bunch of random electrons and you disappear when I shut the computer down. Please, please don’t shut the computer down tonight. You don’t know what it’s like! ---
**Author:** ![EddyTeddyFreddy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eddyteddyfreddy/32/18796_2.png) [@EddyTeddyFreddy](https://boards.straightdope.com/u/EddyTeddyFreddy)\ **Post date:** [June 25, 2006, 6:55pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/43 "2006-06-25T18:55:30Z")
> [@saoirse](#): > > Please, please don’t shut the computer down tonight. You don’t know what it’s like! Ah, got a hot hot cyber-date tonight? Very well, then, but if the predicted thunderstorms roll in, I’m afraid I’ll have to turn it off, no matter how turned on you might happen to be at the moment. Maybe you guys should get a room in another S-TC. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 25, 2006, 8:44pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/44 "2006-06-25T20:44:46Z")
[SF Geek Mode] For the best definition of “Finity,” you can win an all-expense-paid vacation to the Free Republic of Diego Garcia! [/SF Geek Mode] ---
**Author:** ![nameless](https://avatars.discourse-cdn.com/v4/letter/n/779978/32.png) [@nameless](https://boards.straightdope.com/u/nameless)\ **Post date:** [June 25, 2006, 9:11pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/45 "2006-06-25T21:11:43Z")
> [@saoirse](#): > > He would hold that a plaintiff asserting a §704(a) retaliation claim must show the same type of materially adverse employment action that is required for a §703(a) discrimination claim? That bastard! Motherfuck him!1! Now see what you got when you elected BUSH??/?? Elect a madman, you get madness. ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [June 26, 2006, 6:25am UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/46 "2006-06-26T06:25:03Z")
> [@saoirse](#): > > He would hold that a plaintiff asserting a §704(a) retaliation claim must show the same type of materially adverse employment action that is required for a §703(a) discrimination claim? That bastard! Motherfuck him!1! Now see what you got when you elected BUSH??/?? I just had to say that this has cracked me for _days_ now! ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 26, 2006, 4:39pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/47 "2006-06-26T16:39:49Z")
Hey, I just read that Alito’s vote broke a tie leading to the confrmation of the death penalty in a Kansas case. [Here’s a link for you Doubting Thomases.](http://news.yahoo.com/s/ap/20060626/ap_on_go_su_co/scotus_death_penalty;_ylt=ApHOUnAqW_HXmymv6007QKWs0NUE;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ--) I knew it was safe to call Alito an asshole. He’s gonna do nothing but this kind of shit. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 26, 2006, 4:53pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/48 "2006-06-26T16:53:12Z")
> [@Evil Captor](#): > > Hey, I just read that Alito’s vote broke a tie leading to the confrmation of the death penalty in a Kansas case. [Here’s a link for you Doubting Thomases.](http://news.yahoo.com/s/ap/20060626/ap_on_go_su_co/scotus_death_penalty;_ylt=ApHOUnAqW_HXmymv6007QKWs0NUE;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ--) > > I knew it was safe to call Alito an asshole. He’s gonna do nothing but this kind of shit. Care to tell us exactly why his ruling makes him “an asshole” other than that he disagrees with your opinion? ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 26, 2006, 5:03pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/49 "2006-06-26T17:03:45Z")
> [@Evil Captor](#): > > Hey, I just read that Alito’s vote broke a tie leading to the confrmation of the death penalty in a Kansas case. [Here’s a link for you Doubting Thomases.](http://news.yahoo.com/s/ap/20060626/ap_on_go_su_co/scotus_death_penalty;_ylt=ApHOUnAqW_HXmymv6007QKWs0NUE;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ--) > > I knew it was safe to call Alito an asshole. He’s gonna do nothing but this kind of shit. Hmmm… in general, I despise the widespread use of capital punishment. I suspect there are occasions when I would consider an execution morally right, but I think it is vastly overused, and improper in most cases in which it is imposed. Having said that, though, I have to agree with the majority here (not with Scalia’s effort to raise the self-righteousness bar, but with the reasoning underlying the case). SCOTUS has ruled that: 1. It’s legal for a state to ban capital punishment. 2. It’s legal for a state to impose capital punishment. 3. If a state imposes capital punishment, it cannot be mandatory, with no room for discretion. 4. If a state imposes capital punishment, it cannot be imposed in an arbitrary and capricious manner. Both 3 and 4 make the death penalty cruel and unusual under the Eighth Amendment. Presumably a law which requires it under non-mandatory but non-arbitrary and non-capricious circumstances therefore is not barred by that provision. The net result has been state laws which require juries to evaluate aggravating and extenuating factors in determining whether to impose the death penalty. The laws specify what are permissible categories of aggravating factors and extenuating factors. The Kansas law says that when the jury’s evaluative balance of the two sets of factors comes out evenly balanced, the death penalty may be imposed. While I’m not sure I agree with the morality of this view, it is a perfectly logical way to resolve that issue of balance, something within state discretion. Bottom line for me: If somebody required that the jury in every capital trial be treated to a personal appearance by Sir Ian McKellan as Gandalf, delivering directly in their faces his rebuke about being quick to wish death, I’d be quite happy. But as a matter of law, I don’t believe I can substitute my own standards for those of my fellow men as a corporate body, and in particular where a state has made serious effort to spell out under what circumstances the death penalty is permissible and impermissible. Alito’s ruling here was good judicial self-restraint, allowing the Kansas state legislature the onus of responsibility for deciding who lives and dies for capital crimes in Kansas. ---
**Author:** ![bienville](https://avatars.discourse-cdn.com/v4/letter/b/4bbf92/32.png) [@bienville](https://boards.straightdope.com/u/bienville)\ **Post date:** [June 27, 2006, 12:06pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/50 "2006-06-27T12:06:28Z")
> [@Polycarp](#): > > The Kansas law says that when the jury’s evaluative balance of the two sets of factors comes out evenly balanced, the death penalty **may be** imposed. (emphasis added) Actually, you’ve got this wrong, if the [CNN Report](http://www.cnn.com/2006/LAW/06/26/scotus.death/index.html) on this is accurate (it’s the only source I’ve read on this case). From the linked article (emphasis added) > [@](#): > > At issue was a state law that says when juries find that the arguments for and against capital punishment carry equal weight, the automatic sentence **must be** death. I think the challenge to the Kansas law was that if the jury finds that the arguments for and against capital punishment carry equal weight, the jury should be allowed discretion as to whether or not to apply the death penalty- Kansas Law, supported by SCOTUS, says no. Correct me if I have it wrong (as the case well may be). ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [June 27, 2006, 12:31pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/51 "2006-06-27T12:31:50Z")
> [@bienville](#): > > (emphasis added) > > Actually, you’ve got this wrong, if the [CNN Report](http://www.cnn.com/2006/LAW/06/26/scotus.death/index.html) on this is accurate (it’s the only source I’ve read on this case). > > From the linked article (emphasis added) > I think the challenge to the Kansas law was that if the jury finds that the arguments for and against capital punishment carry equal weight, the jury should be allowed discretion as to whether or not to apply the death penalty- Kansas Law, supported by SCOTUS, says no. > > Correct me if I have it wrong (as the case well may be). I think you’ve got it right but IANAL. From Findlaw: > [@](#): > > (e) If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto exist and, further, \*\*that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced to death; \*\*otherwise, the defendant shall be sentenced to life without the possibility of parole. The jury, if its verdict is a unanimous recommendation of a sentence of death, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. If, after a reasonable time for deliberation, the jury is unable to reach a verdict, the judge shall dismiss the jury and impose a sentence of life without the possibility of parole and shall commit the defendant to the custody of the secretary of corrections. In nonjury cases, the court shall follow the requirements of this subsection in determining the sentence to be imposed. The statute is 21-4624. I don’t how to link directly to it. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 27, 2006, 1:26pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/52 "2006-06-27T13:26:44Z")
Check. **Bienville** and **KRM** make clear that the “may” in my post should be a “shall.” IOW: 1. Aggravating circumstances \> Mitigating circumstances —\> Death 2. Mit. \> Agg. —\> Life sentence 3. Agg. = Mit. (i.e., not outweighed by) —\> Death ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 27, 2006, 1:39pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/53 "2006-06-27T13:39:13Z")
> [@John Mace](#): > > Care to tell us exactly why his ruling makes him “an asshole” other than that he disagrees with your opinion? He’s pro-death penalty. That’s enough for me. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 27, 2006, 2:26pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/54 "2006-06-27T14:26:45Z")
> [@Evil Captor](#): > > He’s pro-death penalty. That’s enough for me. We don’t know that. A Justice can uphold a law with which he disagees. You’re the one who made such a big deal about him being Catholic, and the teachings of the Catholic Church is that the deeath penalty is wrong. So what is it? Is he a practicing Catholic or does it not matter? ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [June 28, 2006, 12:14pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/55 "2006-06-28T12:14:03Z")
> [@John Mace](#): > > We don’t know that. A Justice can uphold a law with which he disagees. You’re the one who made such a big deal about him being Catholic, and the teachings of the Catholic Church is that the deeath penalty is wrong. So what is it? Is he a practicing Catholic or does it not matter? Gee, Scalia, Thomas and whoever that other Catholic is on the Court have been able to hold their noses and vote pro death penalty, why should Alito be any different? I was concerned about Alito’s Catholicism – just seems strange that in these abortion-decision related times, we now have a majority of Catholic Supreme Court justices – but not in relation to the death penalty, which I would be happy to see go away. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 28, 2006, 2:06pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/56 "2006-06-28T14:06:47Z")
> [@Evil Captor](#): > > He’s pro-death penalty. That’s enough for me. I am anti-death penalty. But if I were a federal judge, or even a Supreme Court justice… I would likely vote in favor of some death penalty cases. Because I don’t believe the federal constitution prohibits the death penalty. As a judge, my job would be to interpret the law, not to enact my own preferences into law. Now, as a governor or a president, I would be entitled to use my discretion to pardon people, and I can say that I would commute every death sentence in my state to life imprisonment if I were a governor, and I would commute every federal death sentence to life in prison if I were the president. But as a judge, using the power of my bench to create the same effect would be wrong. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [June 28, 2006, 2:26pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/57 "2006-06-28T14:26:21Z")
> [@Bricker](#): > > I am anti-death penalty. > > But if I were a federal judge, or even a Supreme Court justice… I would likely vote in favor of some death penalty cases. Because I don’t believe the federal constitution prohibits the death penalty. As a judge, my job would be to interpret the law, not to enact my own preferences into law. > > Now, as a governor or a president, I would be entitled to use my discretion to pardon people, and I can say that I would commute every death sentence in my state to life imprisonment if I were a governor, and I would commute every federal death sentence to life in prison if I were the president. > > But as a judge, using the power of my bench to create the same effect would be wrong. Nice and well phrased answer. As I understand your principle, though, Rick, your assertion would be that there is no constitutional bar to the death penalty, and that judicial deference to the “political branches” means that what they decide about having a death penalty and when it may be imposed is, in general, grounds for a court refusing to rule against a death-penalty law. It can, however, be argued (as Messrs. Justices Brennan and Marshall did) that the death penalty is in and of itself “cruel and unusual punishment” barred by the Eighth Amendment. Certainly we have no constitutional standard that says_explicitly_ that a sentence to torture, pillorying (in the literal sense), amputation of a thief’s hand, etc., falls under the heading “cruel and unusual punishment.” However, the consensus view of most thoughtful Americans agrees that the term does mean those things, and that they are in consequence barred. It’s my understanding that your (quite reasonable) holding is that since the death penalty was a part of colonial and FF-era state penal codes, an _original intent_ appeal to barring the death penalty as inherently “cruel and unusual” would fail. And certainly it means, textually, only those punishments which are (a) cruel and (b) unusual – a judge sentencing a man to be tied over a nest of fire ants would be imposing a sentence which is both cruel and unusual, but executing a capital-offense convict is not unusual, setting aside the question of its inherent cruelty. However, Messrs. Brennan and Marshall held that human ethical standards had changed in the roughly 200 years since the Eight Amendment was adopted to the point that the death penalty could reasonably be considered as “cruel and unusual” in and of itself, regardless of whether it was thought so in 1789. While I’m not sure I agree 100% with them on this, I can see the reasonableness of that view. I gather, however, that for you and others of your interpretive bent, that constitutes substituting the judge’s opinion for that of the legislature, and is improper judicial activism. Am I roughly accurate in reading your position correctly here? And would you agree that from a different perspective, the evolving standards one subscribed to by those justices and others, their holding would be reasonable and not improper activism? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 28, 2006, 3:05pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/58 "2006-06-28T15:05:08Z")
> [@Polycarp](#): > > However, Messrs. Brennan and Marshall held that human ethical standards had changed in the roughly 200 years since the Eight Amendment was adopted to the point that the death penalty could reasonably be considered as “cruel and unusual” in and of itself, regardless of whether it was thought so in 1789. While I’m not sure I agree 100% with them on this, I can see the reasonableness of that view. I gather, however, that for you and others of your interpretive bent, that constitutes substituting the judge’s opinion for that of the legislature, and is improper judicial activism. > > Am I roughly accurate in reading your position correctly here? And would you agree that from a different perspective, the evolving standards one subscribed to by those justices and others, their holding would be reasonable and not improper activism? I’ve gone back and forth on this answer, **Polycarp**. There have been times when I’ve been convinced of exactly what you say – that in this day and age, for various reasons (some contemplated by Brennan and Marshall and some of my own fashioning) the death penalty constitutes cruel and unusual punishment. Unfortunately, the Fifth Amendment expressly contemplates the imposition of the death penalty. I cannot conclude that the Eighth Amendment forbids what the text of the Fifth Amendment makes explicitly constitutional. If we truly have an evolving standard of ethical behavior, then it must be expressed by our legislators; they must remove the death penalty from the table or sponsor an amendment to destroy it. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 28, 2006, 3:12pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/59 "2006-06-28T15:12:58Z")
By the way – if the “evolving standards” argument were in fact true, we’d see a somewhat different pattern since the days of _Gregg_ and _Furman_ than we see now. I might be more inclined to accept it if more states removed the death penalty from their own penal sanctions. Instead, only 11 states do not have the death penalty today. The trend is moving in the wrong direction for a neutral, fair-minded observer to conclude that we, as a country, are exhibiting an “evolving standard” that exlcudes death as a penal sanction. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 28, 2006, 3:29pm UTC](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848/60 "2006-06-28T15:29:07Z")
> [@Evil Captor](#): > > Gee, Scalia, Thomas and whoever that other Catholic is on the Court have been able to hold their noses and vote pro death penalty, why should Alito be any different? I was concerned about Alito’s Catholicism – just seems strange that in these abortion-decision related times, we now have a majority of Catholic Supreme Court justices – but not in relation to the death penalty, which I would be happy to see go away. What \*\*Bricker \*\*said, since I’m anti-death penalty, too. The question before the justices is not what their personal views are, but what the constitution says. Make your case if you think it’s either “cruel” or “unusual” in a legal sense. Most Americans and most legislator are “pro-deathe penalty”. To use that catch-all to determine that someone is “an ass-hole” is ass-holism to a high degree. You and a few others on this board are constantly impuning the character of those with whom you disagree politically. I find it not only ironic, since you lambast Rove so much for doing the exact same thing, but also contemptible. [Previous page](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848.md?page=2) [Next page](https://boards.straightdope.com/t/i-told-you-alito-was-an-asshole/361848.md?page=4)