Harvard law professor Alan M. Dershowitz seems to imagine that Catholic moral teaching compels Catholic judges to exercise an unbounded roving mandate “to do moral justice.” It’s evidently on that basis that he finds shocking — or at least purports to find shocking — the statement in Justice Scalia’s dissenting opinion on Monday that the Supreme 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.”
There’s little reason that Dershowitz should be shocked. First, the statement is (as the New York Times recognized) entirely accurate. Second, Scalia made clear 16 years ago, in his concurrence in Herrera v. Collins, that he believes that no such “actual innocence” claim is constitutionally cognizable. Third, it is part and parcel of Scalia’s original-meaning jurisprudence to reject the notion that justices have the authority to reinvent the Constitution, and to displace representative government, to proscribe all evils, whether real or hypothetical. Is this really news to Dershowitz? How far behind is he on his reading?
Scalia’s concurrence in Herrera also provides an understated response to the ludicrous hypothetical that Dershowitz presents: “It is improbable that evidence of innocence [that is so] convincing . . . would fail to produce an executive pardon.”
Compounding the confusion, Dershowitz asks rhetorically how Scalia could regard as “not immoral under Catholic teaching” the execution of a person who has been adjudged guilty of a capital crime but who can show that he is actually innocent. But there is nothing in Scalia’s position as to what the Constitution permits on this issue that speaks to what he regards as moral or immoral. In other words, Dershowitz has no reason to doubt that Scalia would regard as gravely immoral the intentional execution of a person known to be innocent.
Perhaps even odder than Dershowitz’s confusion is the confused endorsement of his confusion by Fr. James Martin, the associate editor of the Jesuit magazine America.