“The Court thus proclaims itself sole arbiter of our Nation's moral standards—and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent. Words have no meaning if the views of less than 50 percent of death penalty States can constitute a national consensus. Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time.”

— Antonin Scalia

On executing minors: Roper v. Simmons (2005) (dissenting).
2000s

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Antonin Scalia 100

former Associate Justice of the Supreme Court of the United… 1936–2016

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“What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion - that the meaning of our Constitution has changed over the past 15 years—not, mind you, not that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to the evolving standards of decency, of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists.”

Antonin Scalia (1936–2016) former Associate Justice of the Supreme Court of the United States

On executing minors: Roper v. Simmons (2005) (dissenting).
2000s

“The Court's justification for consulting its own notions rather than following the original meaning of the Constitution, as I would, apparently is based on the belief of the majority of the Court that for this Court to be bound by the original meaning of the Constitution is an intolerable and debilitating evil; that our Constitution should not be 'shackled to the political theory of a particular era,' and that to save the country from the original Constitution the Court must have constant power to renew it and keep it abreast of this Court's more enlightened theories of what is best for our society. It seems to me that this is an attack not only on the great value of our Constitution itself but also on the concept of a written constitution which is to survive through the years as originally written unless changed through the amendment process which the Framers wisely provided.”

Hugo Black (1886–1971) U.S. Supreme Court justice

Dissenting in Harper v. Virginia Board of Elections, 383 U.S. 663 (1966).

“We reject the dissent's contention that our approach, by "largely return[ing] the task of defining the contours of Eighth Amendment protection to political majorities," leaves "‘[c]onstitutional doctrine [to] be formulated by the acts of those institutions which the Constitution is supposed to limit,'" […] By reaching a decision supported neither by constitutional text nor by the demonstrable current standards of our citizens, the dissent displays a failure to appreciate that "those institutions which the Constitution is supposed to limit" include the Court itself. To say, as the dissent says, that "‘it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty,'" (quoting Enmund v. Florida) -- and to mean that as the dissent means it, i. e., that it is for us to judge, not on the basis of what we perceive the Eighth Amendment originally prohibited, or on the basis of what we perceive the society through its democratic processes now overwhelmingly disapproves, but on the basis of what we think "proportionate" and "measurably contributory to acceptable goals of punishment" -- to say and mean that, is to replace judges of the law with a committee of philosopher-kings.”

Antonin Scalia (1936–2016) former Associate Justice of the Supreme Court of the United States

Stanford v. Kentucky (1989) (plurality part, case later overruled by Roper); decided June 26, 1989.
1980s

“Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.”

Antonin Scalia (1936–2016) former Associate Justice of the Supreme Court of the United States

Atkins v. Virginia (2002) (dissenting).
2000s

“For me, the only correct meaning of that phrase is that our Government must proceed according to the 'law of the land'—that is, according to written constitutional and statutory provisions as interpreted by court decisions.”

Hugo Black (1886–1971) U.S. Supreme Court justice

On due process, dissenting in In Re Winship, 397 U.S. 358 (1970).

“These decisions give support to a current mistaken view of the Constitution and the constitutional function of this court. This view, in short, is that every major social ill in this country can find its cure in some constitutional principle and that this court should take the lead in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare nor should this court, ordained as a judicial body, be thought of as a general haven of reform movements.”

John Marshall Harlan II (1899–1971) American judge and Associate Justice of the Supreme Court (1899-1971)

Dissenting in Reynolds v. Sims, 377 U.S. 533, 589 (1964).

“[My] approach recognizes the basic principle of a written Constitution. We "the people" adopted a written Constitution precisely because it has a fixed meaning, a meaning that does not change. Otherwise we would have adopted the British approach of an unwritten, evolving constitution. Aside from amendment according to Article V, the Constitution’s meaning cannot be updated, or changed, or altered by the Supreme Court, the Congress, or the President. Of course, even when strictly interpreted as I believe it should be, the Constitution remains a modern, "breathing" document as some like to call it, in the sense that the Court is constantly required to interpret how its provisions apply to the Constitutional questions of modern life. Nevertheless, strict interpretation must never surrender to the understandably attractive impulse towards creative but unwarranted alterations of first principles.”

Clarence Thomas (1948) Associate Justice of the Supreme Court of the United States

Speech to the American Enterprise Institute for Public Policy Research, 2 February 2001.
2000s

“This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court, in reality, substitutes its view of what should be so for the amending process.”

John Marshall Harlan II (1899–1971) American judge and Associate Justice of the Supreme Court (1899-1971)

Dissenting in Reynolds v. Sims, 377 U.S. 533, 624-25 (1964).

“Each party tended to view its own chances in court as better than the other side viewed them.”

Howard Raiffa (1924–2016) American academic

Part II, Chapter 5, Settling Out of Court, p. 75.
The Art and Science of Negotiation (1982)

“I do not mean to say that the Court could not give leave to amend, but I cannot conceive that the Court would listen to an application for leave to amend after the trial. That could not have been intended: it would be opposed to all principles of justice.”

Nathaniel Lindley, Baron Lindley (1828–1921) English judge

Lowe v. Lowe (1899), L. R. P. D. C. A. [1899], p. 209.

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