In the recently decided case of McQuiggin v. Perkins, the conservatives on the Supreme Court continue their struggle against the most powerless people in our society, those who have been convicted of a crime. Justice Scalia, in his written dissent, once again claims special knowledge of the U. S. Constitution, which, he tells the court, does not permit the Supreme Court to make changes to laws, only to opinions of other judges. The part where the Constitution forbids the Supreme Court from modifying laws, according to Scalia, states “All legislative Powers herein granted shall be vested in a Congress of the United States...”. That seems to be a straightforward statement, but it has been interpreted differently by different jurists.
Chief Justice John Marshall, in Marbury v. Madison (1801), decided that the Judiciary Act of 1801 was unconstitutional and voided the entire bill. The Act was passed by the Congress, but the Supreme Court nullified it. This is undoubtedly legislating, by deciding which laws may be implemented and which may not. So the Supreme Court has been legislating from the very beginning of the republic.
The framers did not intend for judges and legislators to become quasi theologists using the Constitution as holy writ. Today, the text of the Constitution is held in such reverence by some Supreme Court Justices that they relate almost every case directly to the Constitution, whether or not the Constitution has any relevance to the case. Scalia has assumed the mantle of soothsayer, since he interprets the Constitution and expects others to be guided by his interpretation. When he says that Judges are forbidden by the Constitution to legislate, he splits some very fine hairs about what constitutes legislation and what doesn't.
Scalia also continues his crusade against what he considers a blasphemous decision, Brown v. Allen (1953). In Brown, the Court decided that a writ of habeas corpus could be granted not just on procedural grounds, but also on substantive grounds. Scalia refers to this decision as a Faustian bargain, in other words, a deal with the devil. He goes on to complain that Brown has caused the courts to be inundated with requests from prisoners. Scalia has said that there is no such thing as substantive due process.
Whether substantive process exists and whether appeals should be granted on substantive grounds depends very much on your politics. Conservatives argue that the Constitution only guarantees you a statutory trial, but does not guarantee a fair trial. You got your trial, your lawyer bungled his job, and now you're sitting in a jail cell for 20 years. If you try to assert your innocence in court, Scalia writes, you are contributing to a flood of “stale, frivolous, and repetitious petitions”.
Looking at substantive grounds for a retrial, however, as the majority of the Court ruled in this case, gives an innocent person a chance to prove his innocence in court. Justice Ginsburg, in writing the opinion of the court, writes that a provable claim of innocence justifies the extension of the one-year limitation prescribed by law. The substantive finding of actual innocence, she says, outweighs the letter of the law, which would require the innocent as well as the guilty to be punished for failing to meet a deadline.
This finding drives Scalia mad. He says the law must be observed. In this uncompromising stance he is acting like the clerk who won't let you buy a pack of cigarettes after closing time. The store is closed, the chance for justice has vanished. Scalia and the clerk make the same excuse. “It's not my fault,” says the clerk. “Rules are rules.” But Scalia and the Supreme Court are not clerks at a seven-eleven. They are the highest jurists in the land, the last court of appeal. Scalia's opinion attests to his belief that innocent people should suffer to reduce the workload of the courts.
In his dissent, Scalia uses a metaphor that reveals just how removed he is from reality. You can't just add something to a law passed by the legislature, he says. “any more than one would add another gear to a Swiss watch on the theory that the watchmaker surely would have included it if he had thought of it. In both cases, the intricate craftsmanship tells us that the designer arranged things just as he wanted them.”
The problem with this metaphor is that the watchmaker of a Swiss watch is making an instrument that is guaranteed to work indefinitely. The watchmaker assures the buyer that all of his skill has gone into the making of this watch. A legislative body assures no such thing. The legislature presents the public with a law that is very often a compromise between two diametrically opposed schools of thought. Laws are frequently badly written, containing loopholes that skillful lawyers can use to negate their purpose. Sometimes laws fail in practice because the legislature designs the law to do something that cannot be done, such as lower taxes and balance the budget at the same time. Comparing congress to a Swiss watchmaker is like comparing God (who is infallible) to the committees that design how traffic flows in our big cities.
We all may wish that our Constitution and laws could be perfect, but most of us understand that they are not.