Scalia and his Cafeteria Catholicism

Much byte-ink has been spilled about conservative Catholic Supreme Court Justice Antonin Scalia's comment in a dissenting SCOTUS opinion on a case concerning a man convicted of a capital crime and sentenced to death, yet who has also produced nearly indisputable evidence subsequent to his conviction that he is innocent. In this comment, reprinted below, Scalia's dissent basically argued from a point of judicial procedure that a convicted man sentenced to death in what was, at the time, a full and fair trial, must still die via capital punishment even if later evidence proves his innocence. Here's what Scalia actually wrote:

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Alan Dershowitz skewers Scalia on this position both from a common sense jursiprudential position, as well as on an appeal to Scalia's stated view of the supremacy of his Catholic faith over even his obligations as a Supreme Court justice. The whole Dershowitz piece is a must-read, especially for orthodox Catholics. So, if you are one of my orthodox Catholic readers, click on the link and read the whole thing carefully from start to finish. For now, I'll just share some choice selections from Dershowitz's piece.

With regard to Dershowitz's skewering on the basis of a common-sense jurisprudential position, nothing speaks more clearly than this hypothetical scenario that Dershowitz posits:

Let us be clear precisely what this [Scalia's above-cited comment] means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices [Scalia and Clarence Thomas, the other Catholic Supreme Court justice who enjoined this dissent authored by Scalia] would tell him, in effect: “Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she’s dead, and as for you, Mr. Innocent Defendant, you’re dead, too, since there is no constitutional right not to be executed merely because you’re innocent.”

I think that pretty much about says it all. Scalia's adherence to procedure at the expense of simple common sense and a very basic notion that justice serves to protect the innocent is patently absurd when taken to its logical conclusion as expressed in the hypothetical case Dershowitz presents.

However, the more interesting aspect of Dershowitz's blistering critique of Scalia's position, at least for me, is how Dershowitz hoists Scalia on his own Catholic petard. Here's what I think are the money sections of Dershowitz's piece in this regard:

But whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?

Ordinarily I would not include a justice's religious views in a criticism of a judicial opinion, but with regard to capital punishment, it is Justice Scalia who has introduced the religious dimension. I am simply trying to hold him to his own published standards.

...

I invite him to participate in the debate at Harvard Law School, at Georgetown Law School, or anywhere else of his choosing. The stakes are high, because if he loses—if it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church—then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.

I wonder if Scalia will take Dershowitz up on this challenge. But, more importantly, I wonder what the Vatican itself might have to say about this. Perhaps Scalia's position tolerating the execution of the demonstrably innocent on procedural grounds, especially since he is precisely in a position as a Supreme Court justice to prevent such an immoral execution by the exercise of his judicial authority, might elicit some missive from some pro-life Catholic Bishop to deny Scalia communion, considering him formally cooperating with evil. Now that would be something to see.