CNN  — 

In a 5-4 ruling in which the U.S. Supreme Court upheld the use of a controversial drug for lethal injection in executions Monday, liberal Justice Stephen Breyer, who dissented, called into question the constitutionality of the death penalty, itself.

Breyer’s dissent prompted an impassioned and colorful response from conservative Justice Antonin Scalia, who referred to Breyer’s reasoning as “gobbledy-gook.”

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Here are some highlights from Breyer’s dissent:

1. “For the reasons stated in Justice [Sonia] Sotomayor’s opinion, I dissent from the Court’s holding. But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

2. “This Court has specified that the finality of death creates a ‘qualitative difference’ between the death penalty and other punishments (including life in prison) … There is increasing evidence, however, that the death penalty as now applied lacks that requisite reliability.”

3. “Researchers have calculated that courts (or State Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue. They are nine times more likely to exonerate where a capital murder, rather than a noncapital murder, is at issue … This pressure creates a greater likelihood of convicting the wrong person.”

4. “The problems of reliability and unfairness almost inevitably lead to a third independent constitutional problem: excessively long periods of time that individuals typically spend on death row, alive but under sentence of death.’

5. “The dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out … Furthermore, given the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed, abandoning further appeals.”

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Highlights from Scalia’s response to Breyer:

Supreme Court backs use of lethal injection drug

Scalia joined the opinion of the Court, as read by conservative Justice Samuel Alito, but wrote his own response to address Breyer’s call for abolishing the death penalty all together.

1. Scalia began his remarks with the following: “Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11–month-old baby), come before this Court asking us to nullify their sentences as “cruel and unusual” under the Eighth Amendment … They were duly convicted and sentenced. They were granted the right to appeal and to seek postconviction relief, first in state and then in federal court. And now, acknowledging that their convictions are unassailable, they ask us for clemency, as though clemency were ours to give.”

2. “The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good.”

3. “Even accepting Justice Breyer’s rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook.”

4. “(A caution to the reader: Do not use the creative arithmetic that JUSTICE BREYER employs in counting the number of States that use the death penalty when you prepare your next tax return; outside the world of our Eighth Amendment abolitionist-inspired jurisprudence, it will be regarded as more misrepresentation than math.)”

The role of the Supreme Court is called into question

In his dissent, Breyer acknowledges that many believe that the legality of the death penalty should be determined by legislatures but he insists that since Congress has failed to implement the death penalty in a constitutional manner, the Court must act:

“I recognize a strong counterargument that favors constitutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? … I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked. Thus we are left with a judicial responsibility.”

This was Scalia’s response:

“Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”

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