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April 29, 2009


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Tony, wouldn't it be more accurate to write that Scalia referred to the "Israeli supreme court" (no caps)? It isn't your fault that you missed the joke.


Justice Scalia was not making an argument for international input. See Roper v. Simmons, 543 U.S. 551,624 (2005)(Scalia, J., dissenting). The rule that Justice Scalia was refering to was not of the modern Israeli Supreme Court. The rule that a unanimous death penalty decision
is invalid, is from the ancient text of Maimonidies in his rules of the Jewish High Courts that served in the times of the Holy Temple. The court in question was comprised of no less than 70 judges, and because Jewish law makes it very tough to actually execute someone, and there were no lawyers , the theory was that it impossible that not a single judge out of 70 could not find some loophole. I can't be sure that the current Israeli Supreme doesn't have such a law, but it sounds very unlikely. I am however sure that this was the law in the Jewish Courts over 2000 years ago.


"All he's saying is that, as a very general matter, unanimity can be a sign of something fishy, and the Israeli rule's an example of that."

And when Justice Kennedy thinks, gee, it's possible there's something very wrong with whom we allow to be executed, and then cites X other countries' rules as examples of that, it's different?


There's nothing odd about the comment, or at least, it's not odd for the reasons you suggest. Scalia clearly isn't saying, you know, let's adopt the Israeli Supreme Court's death penalty rule and apply it to an utterly different context of unanimously approved legislation. Let's look to Israel to decide what to do with the Voting Rights Act. All he's saying is that, as a very general matter, unanimity can be a sign of something fishy, and the Israeli rule's an example of that.

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