From Alan Dershowitz via Economist trying to explain the dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas in the case of Troy Davis.:
"Let us be clear precisely what this 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."
From Economist:
"...Mr Davis is on death row for murdering an off-duty police officer named Mark MacPhail 20 years ago. Seven of the nine eyewitnesses who fingered Mr Davis have since recanted their testimony. Many now say they were coerced by police and that the real killer is Sylvester Coles. Mr MacPhail was trying to get Mr Coles to stop harassing a homeless man at the time of the incident. Mr Coles also happens to be one of the witnesses who fingered Mr Davis.
Is Mr Davis innocent? That's not the right question. Does his potential innocence matter? Not to Justice Scalia, who wrote, "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." Thankfully, a majority of the court was more empathetic, ruling that Mr Davis deserves a new hearing. In an opinion joined by Justices Ruth Bader Ginsburg and Stephen Breyer, Justice John Paul Stevens wrote that the "substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing." Indeed."
TW: Conservatives when convenient speak of strict constructionism as a legal tenet. I am not sure if Scalia and Thomas went off the rails in pursuit of some warped sense of constructionism or if they just want anyone with the slightest possibility of guilt to fry.
7 comments:
"I am not sure if Scalia and Thomas went off the rails in pursuit of some warped sense of constructionism or if they just want anyone with the slightest possibility of guilt to fry."
False dichotomy.
A third option: These two justices knew what the majority opinion would be, and were glad for it. But in order to enter an important legal consideration into the record, wrote a dissenting opinion that cites what they cited.
The important consideration being, of course, that it's not the job of the Supreme Court to spring innocent people from death row based on appeals that are *not* about constitutional matters.
Appeals are not supposed to be "do-overs" for determining innocence. That is *very* worth noting for the record, and this dissent will no doubt be cited in briefs when other such appeals are made.
The REAL question is not a doubt as to the hearts of these two justices (nor, even, why you would be so quick to accuse them so harshly instead of thinking about what *else* might have been going on), but HOW ON EARTH this appeal made it to Supreme Court? Seems like this guy should have been freed much earlier on.
I'm no lawyer, as you know. And I haven't read a thing about this case other than what I see on your blog. So, this is just a guess. But it's a good illustration of what it means to be charitable in our arguments. And I think the broader discourse is benefitted by such efforts.
I am not an attorney either but Dershowitz and many others are who took a similarly dim view of their dissent.
I assume their are ways to express concern for process (i.e. concurring opinions etc.) without taking a position that despite very significant evidence indicating innocence that they would have supported putting the guy down.
I see no charitable cause being served.
From Scalia:
"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."
From Economist blogger:
"Thankfully, a majority of the court was more empathetic, ruling that Mr Davis deserves a new hearing"
Me: from what I read Scalia was ignoring the substance and focused completely on the process ignoring the fact that a man might unjustly die in the process that is the whacked part to me nothing or less.
I dont really care about their hearts such as they are only their judgment in applying law and reconciling law to realities. This opinion appears to ignore common sense.
What was in their hearts was made clear in Dec 2000.
I'm trying to make a different point.
Namely, that Scalia and Thomas *knew* the majority opinion would see that this man wouldn't be executed. It's not as though their decisions happen via secret ballot.
Knowing this, they were free to add a technical comment to the decision. There is a lot of usefulness in this comment. In fact, it's one of the primary purposes of writing dissents and entering them into the record.
My reference to being "charitable" in an argument is one that we're taught in our beginning philosophy classes: Do your best to see the other guy's point. There is little good in arguing against the dimmest view of his position. Unless your only goal is to make him look bad.
And so my challenge to you, and to the Dershowitzes out there, is to ask, "Really? Do you REALLY think these two justices wanted to see this defendent executed??? Could there not have been ANY other explanation for why they'd write this dissent?"
We're obligated to ask that question before we accuse them of being "off the rails" or, far worse, wanting to see a man "fry."
And by making such an accusation, you are, obviously, commenting on their hearts. At the very least, you're commenting on their desires, and there's no way to dis-link those from a person's character.
My suggestion of an explanation is pretty reasonable. If the goal really is to put reason first, something like this explanation should have at least made your dichotomy into a trichotomy.
When someone on the Right uses extreme rhetoric, and fails to make an attempt to understand the other guy's point, you decry it on your blog. As well you should. There's lots of screaming rhetoric on the Right.
What happens when it shows up on the Left? Where's your outrage?
Why not take Dershowitz to task on this and say, "I don't like these 2 justices' decisions most of the time either. But there might be a good reason they'd write what at first seems like a crazy dissent."
Or does the poop on the Left stink less than the poop on the Right?
Did they want the guy to fry?
You are making a convoluted argument that they did not even though their words indicate they did. That is the problem with their opinion, I do not believe dissents are meant to divorce themselves from the substance of the case (i.e. putting a man to death or not) in order to make a tangential point (such as it is).
Do I know what is in their hearts?.
Nope (except as to who they wanted to be POTUS in 2000).
Was my use of word fry hyperbolic?
Yes. So focus on "warped sense of constructionism".
Does my shit stink less than most on the right?
Without a doubt. I hate equivalency arguments generally and I will certainly not go there in this case.
Sorry, can't let this go quite yet.
"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."
Where, in this, do you see that these 2 want to see the guy "fry"?
What is here is a statement about whether the Supreme Court finds a constitutional obligation to a certain class of defendents.
And this is *exactly* one of the purposes of dissents, again: to enter into the record important legal considerations.
What you haven't addressed in my point (and calling someone's argument "convoluted" even though the reasoning is pretty straightforward--I am not, for instance, the one repeatedly citing a completely unrelated court decision from 2000--does not count as "addressing a point") is whether you were exercising the principle of charity in your original post.
Were you?
Did you think through what might have been behind the dissent?
Did you consider their position in the best possible light?
Or did you leap into your dichotomy?
And why, for that matter, is it my job to "focus" on the less odious portion of that dichotomy? You're the one who gave me a choice: Either conclude these justices are "off the rails" or conclude that they "want anyone with the slightest possibility of guilt to fry."
I called you on it.
Telling me to ignore the hyperbolic portion seems to be an admission on your part.
And finally, I haven't made any equivalency argument. I've made an argument from comparison: Hyped rhetoric from a certain camp earns your condemnation. As compared to hyped rhetoric from a different camp--including your blog--that does not earn condemnation.
If you want to admit to holding a double standard, that's fine. If it's politically expedient for you (as double standards always are) and you think you can accomplish more by permiting it to yourself, OK. If you see yourself more in the category of "party pundit" out there to win the day for your guys more than you do as an "independent blogger" out there to participate in the public discussion and help to make it more constructive and honest, then your rhetoric is right on target.
I'm just pointing it out to you. And I'm happy to let this be my last word, unless you'd like me to comment further.
You called me on the "fry" piece of the dichotomy and I backed off, that is an admission of flippancy and hyperbole on my part.
Therefore, congratulations (on that one piece).
I do not back off my disagreement with Scalia/Thomas being off the rails generally or specifically in this case. The guy appears to likely be innocent, their dissent appears to me (and others) to ignore that in favor of abiding the previous rulings.
I posted that one reluctantly because it is legal and I neither have the expertise nor the particular interest in the subject but when folks like the Economist and Dershowitz validate my impression I felt comfortable with it. What they did not do was throw in the "fry" part which was the flippant part and the risk one runs when putting up hundreds of posts.
As for me. Am I unbiased absolutely not but then no one is.
Do I call out the Republicans more often, absolutely because in my opinion and this blog is inherently my opinion, they deserve it more.
You are framing things as one or the other (unbiased or biased) there is no such black and white, we are all part of a spectrum.
Folks can read, lend credence and respect what I say based on the quality or the lack thereof in the posts (if they happen to know me than their impressions are skewed by that as well).
To be clear I like being called out otherwise I just bounce around within my own echo chamber.
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