The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.
To be fair, he isn’t saying it should be illegal; he’s saying that the constitution doesn’t forbid states from making it illegal, and that the issue is therefore left to the voters. When critics fail to acknowledge this distinction, they fail to engage in the intellectual argument in an honest way. Like him or not, Scalia is usually intellectually honest, even when he is wrong.