Here's a quote from a 1996 Scalia speech:

I'm not very good at determinating what the aspirations of the American people are. I am so out of touch with the American people. I don't even try to be in touch.... If you want somebody who's in touch with what are the evolving standards of decency that reflect a maturing society, ask the congress."

Has there ever been a case in which Scalia found a violation of the 8th Amendment's ban against cruel and unusual punishment? In this case, decided on the issue of qualified immunity, where an inmate was left in the sun for seven hours while tied to a hitching post, deprived of adequate water and any bathroom breaks, Scalia would have found no 8th Amendment violation. He joined with Thomas in a dissent that said, at footnote 12,

I continue to believe that “©onditions of confinement are not punishment in any recognized sense of the term, unless imposed as part of a sentence.” Farmer v. Brennan, 511 U.S. 825, 859 (1994) (Thomas, J., concurring in judgment). As a result, I do not think, as an original matter, that attaching petitioner to the restraining bar constituted “punishment” under the Eighth Amendment. See ibid.

Nevertheless, I recognize that this Court has embraced the opposite view–that the Eighth Amendment does regulate prison conditions not imposed as part of a sentence, see, e.g., Estelle v. Gamble, 429 U.S. 97 (1976)–so I will apply that jurisprudence in evaluating whether respondents’ conduct violated clearly established law. I note, however, that I remain open to overruling our dubious expansion of the Eighth Amendment in an appropriate case. See Farmer, supra, at 861—862 (Thomas, J., concurring in judgment).

Scalia didn't find California's three-strikes law and a 25 year to life sentence cruel and unusual under the 8th Amendment where the defendant's third strike was stealing $150 of videotapes from a Wal-Mart.

In 1989, Scalia voted in Stanford v. Kentucky, that the execution of a 16-year-old boy was not cruel and unusual punishment. At a speech at the University of Chicago, Scalia said the state had the moral authority to act "in place of the Lord in carrying the sword." He said judges who don't believe in the death penalty on moral grounds should resign.

Scalia criticized the Court's decision to ban the death penalty for mentally retarded defendants:

"The fact that juries continue to sentence mentally retarded offenders to death for extreme crimes shows that society’s moral outrage sometimes demands the execution of retarded offenders," Scalia also wrote.

Justice Scalia says he does not advocate a strict constructionist view of the Constitution. (See this article which says he's an "originalist.") But the 8th Amendment doesn't define "cruel and unusual punishment." It just prohibits it. So how can there be a strict constructionist view? Answer: There can't be. It doesn't exist, by definition. Scalia's strict constructionist view is in reality an abrogration of the 8th Amendment. It renders it a nullity. It's judicial extremism, and it's also judicial activism in that it affirmatively denies a constitutional right.

Scalia's point about unelected judges fails the logic test. All laws overruled by the Supreme Court are done by unelected judges. If the Supreme Court overturns Oregon's physician-assisted suicide law in Ashroft v. Oregon this fall, passed by the voters in 1997, won't that be an act of unelected judges substituting their interprepation of the Constitution over the will of the voters and elected officials?

It seems to me Justice Scalia just objects to judicial interpretation when he doesn't like the outcome. He's a judicial activist and an extremist and he should not be Chief Justice.

[Ed: corrected to note that Justice Scalia insists he is not a Strict Constructionist.]