Wednesday, August 19, 2009

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.

7 comments:

Maitri said...

Isn't this the same man who, when his personal records were published, said "Just because you can, common sense dictates that you shouldn't?"

Maitri said...

Yes, he did:

Fordham Law Class Collects Personal Info About Scalia; Supreme Ct. Justice Is Steamed

And, as Scalia himself made clear in a statement to Above the Law, he isn't happy about the invasion of his privacy:

"Professor Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any," the justice says, among other comments.

Eric said...

It certainly sounds like a rediculous case (I know nothing about it other than what I've read here), but one has to wonder why, if the evidence against him was so poor, his execution wasn't stayed at the state level?

Huck said...

Well, that's a fair question, Eric. But it's irrelevant to the ability of Scalia to stay the execution. Maybe the state court is composed of a majority of justices who hold Scalia's opinion and are deferring on procedural grounds, too? And doesn't the Supreme Court of the US exist partly to rectify injustices meted out at the state level, especially when state courts are either unable or unwilling to act on this injustice? Thank God Scalia and Thomas were in the minority on this decision, because now an innocent man is likely spared from execution.

Anonymous said...

"And doesn't the Supreme Court of the US exist partly to rectify injustices meted out at the state level, especially when state courts are either unable or unwilling to act on this injustice? "

That's certainly the right question to ask, but I think the answer is tricky. Would you agree that there are times where the court's duty is to interpret a law supercedes the court's duty to actually pursue a just outcome as a result of that law?

We'd all like more common sense in the law, but the job of the Supreme Court is not to be an arbiter of common sense, but to interpret whether or not laws are codified in a Constitutionally coherent manner. Does that mean laws can be morally atrocious but 'legally' coherent? It does, and nobody like that, but when you make it any other way, you tilt the court towards political and anti-intellectual dealings.

Now, could I stomach making a decision like Scalia's and Thomas's? No, I'd go with my understanding of right and wrong. But at the end of the day, I think that might make me a good man but a poor judge.

And let's also be clear about one thing: the true criminals and moral reprobates in this story are the 9 "eyewitnesses" who falsely testified against the defendant in a murder trial, knowing it would result in his death sentence.

Eric said...

whoops, didn't mean to post that anonymously... it was me.

Huck said...

But at the end of the day, I think that might make me a good man but a poor judge.

I think this is Dershowitz's point about Scalia's statement that he would have to quit the bench if he found himself forced to be a "good" judge, whose adherence to established law, would require him to support an immoral act such as executing someone who is innocent. Scalia set this litmus test up for himself. Scalia has said that if and when being a "good" judge would require him also to be a "bad" man, he'd quit being a judge because maintaining his moral standing is more important.

And let's also be clear about one thing: the true criminals and moral reprobates in this story are the 9 "eyewitnesses" who falsely testified against the defendant in a murder trial, knowing it would result in his death sentence.

No arguments from me. I agree with you 100% on this point. Yet that does nothing to exculpate Scalia. At one level, if Scalia has the power to stop an innocent man from being unjustly executed, and yet doesn't do so, then he is just as complicit in knowingly sending an innocent man to his death as these other "criminals and moral reprobates." Two wrongs do not make a right.