Alan Dershowitz, Antonin Scalia, Death Penalty, Religion, SCOTUS, Supreme Court

Professor Dershowitz's Challenge to Justice Scalia

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On Monday, the Supreme Court ordered a federal trial judge to take a closer look at the murder case against Troy Anthony Davis, a Georgia death row inmate. The SCOTUS directed the district judge to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis’] innocence.”
Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented. Justice Scalia questioned the viability of Davis’s claim of actual innocence, then went one step further. Even if Davis might be “actually” innocent, he’s SOL:

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.

This bold pronouncement caught the attention of Professor Alan Dershowitz, back at Justice Scalia’s alma mater, Harvard Law School. From “Scalia’s Catholic Betrayal,” over at The Daily Beast:

Let us be clear precisely what [Scalia’s dissent] 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.”

It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.

So should Justice Scalia resign? The Dersh isn’t saying that — yet.
But he does have a challenge for Nino.


Professor Dershowitz sets up his argument by summarizing Justice Scalia’s views on Catholic teaching and the death penalty. According to Justice Scalia, as summarized by Professor Dershowitz, because the Catholic Church “counsel[s] against the use of capital punishment but permit[s] this extreme sanction in extraordinary cases, especially when there is no reasonable alternative,” it is morally acceptable for a Catholic jurist to handle death penalty cases (i.e., to “tinker with the machinery of death,” as Justice Blackmun so memorably put it).
But does the Catholic Church’s narrow acceptance of the death penalty permit Justice Scalia’s more aggressive position regarding the execution of the “actually innocent”? Professor Dershowitz doesn’t think so:

[W]hatever 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?

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To paraphrase Senator Coburn, it sounds like Justice Scalia has lots of ‘splainin’ to do.
Luckily for AS, the Dersh is willing to give him that opportunity:

I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence. Justice Scalia is always willing to debate issues involving religious teachings….

Although I am neither a rabbi nor a priest, I am confident that I am right and he is wrong under Catholic Doctrine. Perhaps it takes chutzpah to challenge a practicing Catholic on the teachings of his own faith, but that is a quality we share.

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.

Hmm…. This bargain sounds a little Faustian. But still, we’d give up at least a kidney, with maybe a little toe thrown in, to attend a Scalia-Dershowitz debate.
We’ve reached out to Justice Scalia for comment on Professor Dershowitz’s challenge. If we hear back from him — it wouldn’t be the first time — we will let you know.
Scalia’s Catholic Betrayal [The Daily Beast]
Hearing on innocence claim ordered [SCOTUSblog]

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