Argument: The death penalty is not cruel
Chief Justice Earl Warren in Trop v. Dulles. - Whatever the arguments may be against capital punishment, both on moral grounds and on grounds and in terms of accomplishing the purposes of punishment.... the death penalty has been employed throughout our history, and in a day when it is still widely accepted, it cannot be said to violate the conceptional concept of cruelty.
Justice Antonin Scalia - The Fifth Amendment provides that '[n]o persons shall be held to answer for a capital...crime, unless on a presentment or indictment of a Grand Jury...nor be deprived of life...without the due process of law.' This clearly permits the death penalty to be imposed, and establishes beyond doubt that the death penalty is not one of the 'cruel and unusual punishments' prohibited by the Eighth Amendment.
The U.S. Supreme Court noted in Gregg v. Georgia. - In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not at issue... (emphasis mine).