"There's not an ounceworth of room for debate as to whether it constitutes cruel and unusual punishment because, at the time the Eighth Amendment was adopted – the cruel and unusual punishments clause – it was the only punishment for a felony. It was the definition of a felony. It's why we have Western movies because horse thieving was a felony."
Breyer pointed out:
"And indeed there were whipping posts where people were flogged virtually to death up until the middle of the 19th century," he said. "If we had a case like that today I'd like to see how you'd vote."
Now of course none of this matters if a crazy case like the above got to a Supreme Court, and the vote was 8 -1 or more likely 7 - 2 (Clarence Thomas). But given the past election where clearly (politically) insane people came close to getting elected to the U.S. Senate (all but Rand Paul failed-and he recanted much of his extreme views), and actually succeeded in the House of Representatives (for example welcome Congressman West from Florida), we can take nothing for granted. I think Scalia knows better but it's too much fun to antagonize the left. But at a certain point when we have people calling the President a socialist, a nazi, and businesses thinking he's anti-business in a year when they saw record profits, reality might not mean the same thing to all people.