Legal Commentary

Scalding Scalia

By Tom Kirkendall

Never one to avoid a lively debate, Harvard law prof Alan S. Dershowitz (previous posts here) lays the wood to Supreme Court Justices Antonin Scalia and Clarence Thomas in this Daily Beast op-ed over the extent of their rationalizations to avoid restricting application of the death penalty:

I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:

“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.”

Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday. Let us be clear precisely what this 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 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.”

You know, he's got a point. As noted earlier here, Justices Scalia and Thomas' rigid reasoning sure do lead to some dubious decisions.

Full post as published by Houston's Clear Thinkers on August 21, 2009 (boomark / email).