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.