Supreme Court: Scalia v Sanity

In his article, Why Justice Scalia Wants to Execute the Innocent, Conor Clarke makes the astonishing statement that

liberals who are dumping on Justice Scalia for his dissent in the Troy Davis case...are being a bit harsh.

Scalia and his right-wing cronies have been trying for years to limit the powers of the Supreme Court. But this time Scalia is saying that the high court has not got the power to correct a lower court ruling, even if the defendant in the case is innocent.

If the judges on the high court cannot protect the lives of innocent persons wrongfully convicted, what are they there for? In Justice Scalia's opinion, they are there to see that the correct procedures were followed.

Justice Scalia, in a dissent joined by Justice Clarence Thomas, said the hearing would be “a fool’s errand,” because Mr. Davis’s factual claims were “a sure loser.”

Davis's appeal included a brief signed by 27 prosecuting attorneys and judges. These people are all convinced that Davis deserves another review of the evidence, based on changes in witness testimony and the possible impeachment of a major prosecution witness. But that's not good enough for Justice Scalia, because

This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.

It is obvious from this statement that the guilt or innocence of the defendant is immaterial. The only important thing is the "full and fair trial", in other words, that the process was correct. This is akin to the old bromide about the operation being a success, even though the patient died.

In Justice Scalia's view, the show trials of the Stalinist era were perfectly fine. The defendants were all tortured until they confessed and then sentenced to death by impartial judges. If nothing in the constitution prohibits the state from taking an innocent life so long as the rules of court procedure are followed, the powers of the state indeed become limitless. This is precisely the state of affairs that the framers of the Constitution wished to avoid, since there have always been legal systems where the conviction of someone for a crime is more important than whether he actually committed the crime.

Mr. Scalia's views support the contention that the state is more important than the individual, and that the purpose of the Constitution is to assure that the executive power can exercise its authority without interference from the judiciary. For if the state is permitted to execute people who are known to be innocent, and if the Supreme Court can refuse a new hearing because, in their opinion, the case of the defendant is "a sure loser", there is no judicial protection for anyone. Moreover, the state loses its prestige in the eyes of its citizens because they recognize that it tolerates injustice.

Process does not create justice. Wisdom and mercy together create justice. The deliberations of enlightened men create justice. The petty quibbles of Mr. Scalia can only debase and demolish it.