Bench Memos

Speaking of “Utter Moral Failure”

Writing for Salon, Heather Digby Parton waxes indignant that Justice Scalia could hold the position that the Constitution is not violated when a state executes a person who (in Scalia’s words), “having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be ‘actually innocent.’” Scalia set forth that position more than 21 years ago, in Herrera v. Collins, but the passage of time hasn’t been long enough to enable Parton to see straight.

“How on earth,” Parton wonders, “can such a depraved person be on the Supreme Court of the United States? On what basis can our country lay claim to a superior system of justice and a civilized moral order when such people hold power?”

Had Parton actually undertaken to read Scalia’s opinion, she might have a clue to the answer to her question. Scalia refers to “the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be.” He further opines that “it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.”

I don’t know whether Scalia is right on the latter proposition, but his broader point is that not every evil is remediable in the federal courts as a matter of constitutional law. More particularly, “there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the  Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”

Contrary to what Parton seems to think, Scalia’s position in no way implies that he thinks it’s morally okay for the state to execute innocent people. (Perhaps I’m wrong, but I’m guessing that Parton, as a leading “progressive” blogger, thinks it’s okay for society to allow the private killing of the lives of the innocent unborn.) Rather, Scalia simply recognizes that he doesn’t have a roving commission to prevent such a wrong.

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