Wednesday, April 29, 2015

Alito's intellectual dishonesty

Warren Richey in The Christian Science Monitor chronicled a fascinating exchange at the Supreme Court. The subject was whether Oklahoma's particular "cocktail" of drugs to execute people constitutes cruel and unusual punishment, which would violate the Eighth Amendment.

Originally lethal injection employed one of the well-known anesthetics sodium thiopental or pentobarbitol. Opponents of the death penalty campaigned the drugs' manufacturers to stop making them available for executions, driving states to find alternatives.

... Justice [Samuel] Alito said death penalty opponents are free to try to change the laws and they are free to ask the court to overturn capital punishment.

“But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any pain,” he asked.

So let's get this straight. Justice Alito, like a good conservative, is fine with the operation of the invisible hand — except when it interferes with something he cherishes, like the right to execute people.

The "guerrilla war against the death penalty" was not some heinous attack on civilized society. To the contrary, it represented the essence of what it means to live in a free society. If the drug manufacturers had felt they were being illegally extorted in any way, they had more than enough money and influence to fight (and win) in court.

To characterize the effort to dry up the supply of the drugs as a "war" was rhetorically desperate. It was an effort to delegitimize an opinion with which he doesn't agree. If the drugs were unavailable because the companies were wholly owned by religiously devout men who considered the death penalty to violate their religious scruples, would Alito call the drugs' unavailability the result of a "guerrilla war"?

If the state depends on private companies for its supplies, the state is vulnerable to the vagaries of the market. The drugs were made unavailable by perfectly legal means. Trying to smear those legal means by calling them a "guerrilla war" is juvenile and hypocritical.

Do I expect Alito, or Antonin Scalia or Anthony Kennedy, both of whom chimed in in support of Alito's questioning, to recognize their hypocrisy? No.

But the rest of us must. We may not be able to stop them from being logically inconsistent, politically motivated animals, but we need to call out their hypocrisy and unabashed dishonesty whenever we see it. They need to know we see through their political agenda and that we think it stinks — and so do they.

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