Blame Oliver Wendell Holmes, Jr. – he sat on the Supreme Court of the United States from 1902 to 1932 and would fit right in today. That he died in 1935 presents a problem, of course. But he didn’t legislate from the bench, as they like to say now – the decisions of elected legislatures were fine by him, and if they passed a nutty law that was clearly unconstitutional, well, they must have had their reasons. Give them the benefit of the doubt.
Yes, conservatives would love him – he was no judicial activist. And conservatives would like how, back in 1919, he handled Schenck v United States.
That’s a classic. Charles Schenck was the Secretary of the Socialist Party and in charge of organizing resistance to the draft, much like what some folks did in the sixties during our Vietnam adventure. But he was a little more thoughtful. Schenck told the potential draftees to refuse to serve, if drafted, on the grounds that military conscription constituted involuntary servitude, which is obviously prohibited by the Thirteenth Amendment. Hell, we had a war about that and everything.
The federal government was not amused, and held that his actions, the leaflets and all, violated the Espionage Act of 1917. He was convicted, but appealed on First Amendment grounds – he was allowed to make that argument, he had his rights, and wasn’t a spy or anything like that. He simply was arguing a position, on how he saw the law. That was protected speech.
Maybe it was, and maybe it wasn’t. In any event, the appeals finally rose to the Supreme Court, and nothing gets there unless there is a good argument on either side.
The Court, in a unanimous opinion written by Holmes, said no – the First Amendment did not protect speech “encouraging insubordination” for obvious reasons – “when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”
Ah ha – the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime. That only made sense, as there was a “clear and present danger” – Ari Fleischer made the same case when talking about Bill Maher, and then ABC fired Maher. Fleischer said people should not criticize Bush, his boss. From now on, until terrorism was utterly gone and there was no more evil of any kind anywhere in the world, people should “watch what they say.” Newt Gingrich argued that perhaps the news media should be licensed and only present what the government approves (and all the stuff on the internet stopped) – at least until all terrorism everywhere is gone. You can trace it all back to Holmes.
Is that just? Is that right? Holmes held that such questions were silly. Do you want justice? Holmes would tell you that you’re looking in the wrong place. His most famous quote – “This is a court of law, young man, not a court of justice.”
And now we have the Troy Davis case:
The Supreme Court on Monday ordered a federal trial court in Georgia to consider the case of Troy Davis, who is on death row in state prison there for the 1989 murder of an off-duty police officer. The case has attracted international attention, and 27 former prosecutors and judges had filed a brief supporting Mr. Davis.
Seven of the witnesses against Mr. Davis have recanted, and several people have implicated the prosecution’s main witness as the actual killer of the officer, Mark MacPhail.
The Supreme Court’s decision was unsigned, just a paragraph instructing the trial court to “receive testimony and make findings of fact” – guys, look into this. You might not want to execute this fellow. But then it got interesting:
The decision set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.
“The substantial risk of putting an innocent man to death,” Justice Stevens wrote in a concurrence joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer, “clearly provides an adequate justification for holding an evidentiary hearing.”
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.”
He went on to say that the federal courts would be powerless to assist Mr. Davis even if he could categorically establish his innocence.
Somewhere Holmes is smiling, as Scalia held that even if this guy categorically establishes his innocence, he still gets the lethal injection. Scalia might as well have just quoted Holmes, or maybe he did:
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. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
Well, those words – “actual innocence” – do not appear in the constitution – justice isn’t the same as precise law. People do confuse the two. Here’s Adam Serwer of the American Prospect:
I’m not sure how a trial in which most of the witness testimony was the only evidence against the defendant, and most of those witnesses said they lied on the stand, some say due to police coercion, could be considered “fair.” … But here’s your conservative jurisprudence, your defenders of individual rights and champions of the culture of life, arguing that a potentially innocent man should be executed because well, because.
There must be more to it. Scalia says there is just not anything in the constitution that forbids executing an innocent man. Clarence Thomas agrees with him. The six other justices aligned against them are thinking justice, not law – which they hold is stupid. The famous Empathy Lady, Justice Sotomayor, was not in on this one.
Conor Clarke at the Atlantic comments:
But is this a crazy view? I’m not a lawyer and can’t speak to whether the court has “never held” what Scalia says, or whether Davis actually had a “full and fair trial.” I hope neither of these things is true. But if they are true, why would it be so surprising? Procedural rights (like the right to a lawyer or the right to avoid self incrimination) do not guarantee a specific outcome (like the correct decision in a case). It is possible to imagine a fair trial that respects everyone’s rights but nonetheless reaches the wrong conclusion.
I think procedural rights are useful in large part because they prop up substantive considerations that our society values – like guilt or innocence when guilt or innocence is deserved. But an alternate view of procedural rights – or a view that says, simply, that it’s not the role of the Supreme Court to decide these things – doesn’t seem like it’s molded out of unalloyed craziness.
Conservatives are so much fun – proper procedures, like tradition, and received authority, really do matter. And sometimes stuff happens.
Of course Clarke got emails, two of which set him straight:
The Eighth Amendment prohibits the infliction of cruel and unusual punishment. The “liberal” argument goes as follows: it is both cruel and unusual to execute someone for a crime he did not actually commit. Period.
The problem with Scalia’s quote, and by extension your post regarding it, is that Troy Davis did not receive a full and fair trial if, in fact, several of the witnesses did not tell the truth during that trial.
I should add that I stand by the general point of my post, which was that procedural rights normally aren’t things that stand or fall depending solely on the outcomes they generate. But I read the quotes above as making two good points about this. First, it’s not clear Troy Davis’s procedural rights were satisfied. Second, even if those procedural rights were satisfied, the outcome in this case is so deeply terrible that it calls into question the value of the original procedures.
Hey, even conservatives can be fair and back down. And even the man who has long argued we should legalize torture as official government policy, the famous Felix Frankfurter Professor of Law at Harvard Law School, Alan Dershowitz, comes around:
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.”
Yep, it’s a bit absurd, and somehow also mixed up with religion:
It would be shocking enough for any justice of the Supreme Court to issue such a truly outrageous opinion, but it is particularly indefensible for Justices Scalia and Thomas, both of whom claim to be practicing Catholics, bound by the teaching of their church, to do moral justice. Justice Scalia has famously written, in the May 2002 issue of the conservative journal First Things, that if the Constitution compelled him to do something that was absolutely prohibited by mandatory Catholic rules, he would have no choice but to resign from the Supreme Court.
Unlike President Kennedy, who pledged to place his obligation to the Constitution above his commitment to his church, Scalia has insisted that in his view, “The choice for the judge who believes the death penalty to be immoral [according to the teachings of the Catholic Church] is resignation.” He put his point in “blunt terms” – “I could not take part in that process [of authorizing an execution] if I believed what was being done to be immoral.” He continued: “It is a matter of great consequence to me, therefore, whether the death penalty is morally acceptable. As a Roman Catholic – and being unable to jump out of my skin – I cannot discuss that issue without reference to Christian tradition and the church’s Magisterium.”
But Scalia goes on to say that well, as the Church is God’s voice on earth, and we’re here to do His will, when God wants someone dead and will kill him or her because we are doing God’s will – well, that not immoral. No problem, no conflict.
But is that so in this case?
Dershowitz will have none of it:
…whatever the view of the church is on executing the guilty, surely it is among the worst sins, under Catholic teaching, to kill an innocent human being intentionally. Yet that is precisely what Scalia would authorize under his skewed view of the United States Constitution. How could he possibly consider that not immoral under Catholic teachings? If it is immoral to kill an innocent fetus, how could it not be immoral to execute an innocent person?
Ordinarily I would not include a justice’s religious views in a criticism of a judicial opinion, but with regard to capital punishment, it is Justice Scalia who has introduced the religious dimension. I am simply trying to hold him to his own published standards.
I am not a Catholic, yet I teach principles of Catholic morality in my Harvard Law School freshman seminar, “Where Does Your Morality Come From?”
I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence.
You can hear Scalia laughing at him. Scalia is not required to explain his reasoning to pipsqueaks – or something like that.
But, in Harpers, Scott Horton raises another issue:
Scalia’s Constitution does not guarantee a man who has been convicted and sentenced to death – but who is actually innocent – a review of his case. It is certainly true that the Constitution provides no absolute guarantee of justice. But Scalia’s view effectively puts an expense meter on the justice process. Once the process has run through certain steps – that’s it. In his view, it really shouldn’t matter that subsequent evidence establishes that the conviction is mistaken. It’s more efficient simply to implement the decision and execute the innocent man.
Maybe it’s not morality or justice – just efficiency. Lee Kovarsky, at the NYU School of Law, sees how that could be so:
Davis was convicted in Georgia state court for murdering a police officer. After Davis was convicted, he filed a first federal habeas petition, alleging a variety of constitutional violations. Relief on that petition was denied. (Note: for the purposes of this discussion, a habeas petition is filed in federal court, and tests the constitutionality of a state prisoner’s conviction or sentence.)
Davis had been arrested after a highly publicized manhunt, and seven of the nine witnesses testifying against him have now recanted their testimony. Another man has admitted to approximately four other people that he – not Davis – committed the murder. Davis filed a second (“successive”) habeas petition, alleging a “freestanding” innocence claim – a naked claim that he is not guilty and that is not accompanied by an allegation of some other constitutional violation (such as ineffective assistance of counsel or the prosecution’s failure to disclose exculpatory evidence).
In 1996, Congress severely restricted the circumstances under which state prisoners could file successive petitions. One restriction requires the prisoner to seek “authorization” from a federal appeals court before proceeding on the merits of the claim in district court. Another restriction bars the Supreme Court from using a “writ of certiorari” to review that authorization ruling. Certiorari forms the basis of the Supreme Court’s jurisdiction to review a lower court. Certiorari is, by extreme orders of magnitude, the most frequently-invoked authority for reviewing lower-court decisions. Ninety-nine percent of the Supreme Court cases that law students read are decided on certiorari review.
Yes, to provide “closure” to the families of victims of crime, and to get votes for being tough on the bad guys, many a law was passed to speed things along, to keep these evil bastards from gaming the system and filing tons of usual crap that would turn out to be nonsense that just clogged the system – but does keep them alive. No one considered the exception – the guy who actually was innocent. Oops.
And over the years the reasoning got a bit weird:
The explosion of Warren-era habeas litigation provoked several conservative critiques, including a particularly influential article by Professor Paul Bator. Bator’s position remains the modern “conservative” (or “federalist”) paradigm for habeas adjudication. Bator argued that “ultimate truth” is unknowable. What we mean by “guilty,” Bator argued, is that some quantum of reliable procedure has produced a legal determination that someone has committed a crime. Bator’s point really an epistemic one involving the limits of human inquiry – that the criminal justice system ensures correctness by proxy of reliable procedure.
Got that? Truth is unknowable and all we have is procedure, so it needs to be rigorous and difficult to manipulate for your own ends – a truly conservative position. Thus we get Scalia:
Scalia has embraced this paradigm openly for years, and his arguments embody the belief that, assuming full and fair state process, guilt determinations remain the unique province of state judiciaries.
He won’t overturn state and lower court decisions – as no one really knows the truth. Well, maybe the pope does. But the whole idea is that there can be no such thing as freestanding innocence, without procedure – all we have is procedure. It comes down to epistemology – the study of how we know what we know, of what we can actually know, and of how we would know it if we saw it, whatever it is. It’s very deep. And it’s at the core of what Scalia seems to be up to.
Kovarsky offers a ton more, in excruciating detail, but it comes down to this:
All of this might be sound and fury, signifying nothing. The Supreme Court sent this case down to a federal district court for fact-finding. The federal district court could find the freestanding innocence claim non-meritorious. Or it could grant relief, the Eleventh Circuit could affirm, and the Supreme Court could decline review – once again avoiding a pronouncement on the explosively contentious freestanding innocence question. But Davis has certainly opened the door to the possibility of a seismic shift in habeas law.
But in the end it all circles back to Holmes. There is the law – procedure and rules – and there is justice – that admits the concept of something like freestanding innocence, irrespective of procedure.
And Holmes words echo down the years – “This is a court of law, young man, not a court of justice.”
And now you can see why the conservatives were so upset by the Sotomayor nomination. Empathy from the bench would, ideally, fuse procedure and justice. We cannot have that – but then only Scalia and Thomas pulled a Holmes here. There’s hope.