The US Supreme Court reinstated the Death Penalty in Kansas yesterday. Generally I’m opposed to the death penalty, for a number of reasons, but that’s not the general point of this post. The KC Star reported on the findings and citied Thomas’ majority opinion and Scalia’s consent:

Writing the majority opinion, Justice Clarence Thomas said the Kansas statute is constitutional and does not violate the rights of defendants. In a concurring opinion, Justice Antonin Scalia wrote that the American people have decided that the benefits of capital punishment — deterrence and punishment — outweigh the risk of error, and that it is “no proper part of the business of this court, or of its justices to second guess that judgment.” (emphasis added)

I dare say, that this is the ultimate risk of error. The supreme court has a huge moral obligation to ensure that the civil liberties of the innocent do not fall prey to the American populace’s judgment that they can accidently kill the wrong person because their perceived benefits of the capital punishment system — deterrence and punishment — and the stronger motivator of revenge are preferred.

The concern for error, for killing an innocent person, is not germane for Scalia. God help us. I never pegged Scalia for being a utilitarian.