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Scalia's Catholic Betrayal
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The Supreme Court justice’s shocking remarks about capital punishment are not just a distortion of the Constitution, says Alan Dershowitz, they’re also an outrage against his church.
I never thought I would live to see the day when a justice of the Supreme Court would publish the following words:
“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.”
Yet these words appeared in a dissenting opinion issued by Justices Antonin Scalia and Clarence Thomas on Monday. 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.”
• Paul Campos: Scalia's Death Row Lunacy 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.”
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.
After reviewing the teachings of the church, he concluded that there is no conflict between his judicial role in affirming death-penalty sentences and the strict teachings of the Catholic Church, which counsel against the use of capital punishment but permit this extreme sanction in extraordinary cases, especially when there is no reasonable alternative. This is the way he put it:
“So I have given this new position thoughtful and careful consideration—and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for governor had to promise commutation of all death sentences (most of them would never reach the governor’s mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.”
But 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?
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Professor Alan M. Dershowitz is Brooklyn native who has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights.” He is the Felix Frankfurter Professor of Law at Harvard Law School. He has also published more than 100 articles in magazines and journals, and more than 300 of his articles have appeared in syndication in 50 national daily newspapers. Professor Dershowitz is the author of 27 fiction and nonfiction works.
I would be thrilled to believe that any supreme court justice would put the constitution before his religion while executing their duties as a justice. For the sake of argument, I will assume that your reading of the matter above is correct ( a very big assumption). On that assumption, the law needs to be changed. Not religion included.
The SC Justices jobs are to INTERPRET the Constitution. As such, the Justices' personal feelings are taken into account... their morality included.
By Scalia admitting his morality in the case of executions is based on PERSONAL gain, that makes him a steaming pile of doo-doo.
Some advice jj, Don't go into law.
I'll take your advice, prick. The throwing off of humanity that going into the law takes wouldn't agree with me, anyway.
Well Totally incorrect, the oath of office is to up hold the constitution, however my reading of the advance sheets indicates witnesses who recanted and in their recantation averred that the DA/ police coerced them into perjuring themselves how is this a constitutionally sufficient trial? Justice scalia has soliceted large sums of money for speaking to industry groups whose members cases he has heard this strikes me as intrinsically a conflict of interest and demonstrates how intellecully dishonest this right wing justice has become. He has become a caricature of himself and now resembles the charactor played by wallace shawn in the princess bride who tells everybody how dizzying his logic is and how aristotle and plato are idiots in comparison to him.
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You should take your rage and prejudices to a different web site.
JJ where pricklypear gets off saying that I dont know. Its easy to put someone down that takes no thought process. Theoritically their not supposed to allow their personal views obscure their opinions. But its true what you say. They do. And yes Scalia is not exactly an unbiased, judicious Justice.
Anyone, with the sense of a gently stewed celery stalk, must realize by now that Scalia is certifiably NUTS!
Return with me now as we remember being horrified as O'Connor provided the swing vote that handed our country over to an idiot and Grendel Cheney! I will not live to see the end of both of the misbegotten slaughter-fests brought about in the name of empire and greed!
I have to agree with JJ. Wonder how long it took Scalia to find peace with himself and his new decision? Especially since - if he stood by his morals -his original statement would have sent him packing once he chose to change his stance. And we put these people in office. Stupidity on our part as a whole.
What could dershowitz possibly understand about christian faith? How old is that thumbnail pic?
Mr. Dershowitz,
As much as I admire you as a legal scholar and understanding that this article is not a law review article, I am quite surprised that you would raise Scalia's Catholicism as an issue. What the Catholic church teaches about killing or not killing should rightfully have nothing to do with his or any other justice's jurisprudence when interpreting the Constitution as opposed to the Catholic bible. With that said, is Justice Scalia technically correct in his statement concerning the Court holdings as repugnant as it may be in light of your hypothetical? BTW- do you really think Justice Scalia would uphold the death sentence of a person rightfully convicted with fair trial of murdering his wife but, upon further proof, was able to produce her to show that she was in fact not murdered?
You think liberals are consistent in their beliefs and arguments. Silly, silly, Limeridger. Mr. Dershowitz wants Justices Scalia and Thomas to impose their religious beliefs on others only when it suits Mr. Dershowitz's interest. All other times, he'd be raging against this imposition of their Catholic values on the rest of us. It's like when John Kerry once said that his pro-social justice and environmentalism were the result of his Catholicism. Liberals loved that. To find out that a conservative's religious views inform their pro-life stance or pro-traditional marriage stance, liberals are turned off and claim that these conservatives are imposing their religion on others. "Separation of church and state" mumbo jumbo.
you mean to say you don't see the difference between the role of a legislator and a supposedly impartial justice? i'm guessing you're not a wise latina.
"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."
jackee...
Mr. Dershowitz is pointing out the hypocrisy of Scalia previous statements of how his faith plays an important role in his decisions from the bench. Scalia's decision in this particular case is a serious contradiction to his Catholic teachings and only goes to show that most religion-based conservatives are more interested in serving a vengeful and angry god as described in Old testament rather than the latter teachings of the New Testament in which Jesus preaches tolerance and forgiveness, as well as equality for all of humanity. What ever happened to the tenet "Love one another as I have loved you" and "let he without sin cast the first stone." This is the problem with modern Christianity and its applications to today's society. Religion has become an acceptable conduit to foment hatred towards one another instead of being a personal journey that leads to love and understanding of one another. The understanding that we are all interconnected and interdepedent as humans and the welfare of our neighbors is essential to the preservation of humanity. Unfortunately, morality and religion are not necessarily congruous with one another. Which is why I have a tremendous fear of having SC judges with strong fundamentalist religious beliefs. They can be devoid of morality in lieu of biblical prose and personal interpretation thereof.
As much as the Constitution is a perfect document for the founding our nation. It is also in many ways outdated with respect to the complexities of modern civilization. The world is very different in comparison to the one our founding fathers lived in. The world is much less black & white but rather varying shades of gray. I believe our SC justices should render decisions not just based on the Constitution but with a morality that reflects the wisdom of experience to recognize these complexities. With religious dogma, morality becomes skewed and reality gets viewed through a narrow-minded prism which most often, renders our experiences obsolete.
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When the ultimate result is the end of a ridiculous notion that a truly innocent person is not put to death for a crime which he indisputably did not commit then use of his own religion would seem to be fair game. And of course you use what argument supports your position. Are you going to use the argument which supports theirs? mumbo jumbo lol
Didn't Dershowitz say that Scalia raises his Catholic teachings as an issue? Scalia said he would uphold the death of an innocent so long as a 'fair' trial was held. That is the point of this.
Yes,Genni2002,I'm going to give you a "fair trial,then I 'm going to take
you out and Hang you!
Genni2002
No- Scalia said he would resign if his church's (he doesn't really have a church- it's just his BS) beliefs conflicted with his duties. The church is against Capital punishment- Scalia is not- he should resign but he weaseled out -like most republicans a**holes do. They have no morals or ethics.
Okay trickcamera and adlerman -
Additional evidence about a supreme court judge confirms that he is unfit (never was?) to serve. He certainly is weasily and upsetting.
Is the purpose of the courts to merely enforce the law or to use the law to come as close to justice as humanly possible? Aren't judges called "Judges" because their job is to make judgements? To reduce the law to a prescribed set of "game rules" or a checklist seems to me to be an abrogation of responsibility or just plain cowardly.
BTW- do you really think Justice Scalia would uphold the death sentence of a person rightfully convicted with fair trial of murdering his wife but, upon further proof, was able to produce her to show that she was in fact not murdered?
The answer, unfortunately, is yes, and not only in Justice Scalia's case. Some states, Virginia being one of them, have extremely restrictive rules under which one can bring up exculpary evidence...something like 30 days after trial. So, for an example, 4 days after the limit, if you have a video tape from a business that puts you in another state hundreds of miles away from the crime at the time of the crime...too bad. You don't get to have it evaluated. You just get to rot in jail. This is fact. For too many situations, the letter of the law is taken over the intent of the law: To do justice.
Pr Chris
Pr Chris
I have to disagree with those that think Scalia would allow a sentence to stand when a person who was purportedly murdered showed up in court to show that she was not. The difference lies in allegations that a prior trial result was incorrect versus irrefutable proof. It also it important to note that finality is virtue in the law and, for better or worse, as a society we simply cannot allow endless appeals and arguments after trial verdicts otherwise no verdict would be allowed to stand. A trial is supposed to be your chance to prove your case or show that the other side cannot prove theirs. But for certain error or certain guidelines such as summary judgment review which is looked at de novo you only get one bite at the apple. This is likely all that Scalia was saying. On the other issue, I have yet to see someone show that he was technically incorrect in stating that there is no precedent preventing execution after fair trial. Finally, Scalia has not admittedly envoked religion at all into his jurisprudence. Rather, all he has stated is that his religion does not prevent him from faithfully interpreting and defending the constitution. However, if a situation arose wherein his religion and the constitution could not be reconciled, he would step down. That is merely an honest response and nothing in it should be used to infer that he invoked religion in his opinions.
I agree, although I find Justice Scalia's statement troubling, he is speaking of "alleged innocence", not proven innocence.
There is a saying that bandies about many a courtroom. "You opened that door counselor". Scalia is the one that made his Catholocism an issue. Likewise, Scalia has stated that his first obligation is to the church, not to the constitution. (admittedly stating that if he felt those two were at odds he would resign his post). As to the point "do you really think Justice Scalia would uphold the death sentence of a personrightfully convicted with fair trial of murdering his wife but, upon further proof, was able to produce her to show that she was in fact not murdered?" According to his own dissenting opinion the answer to that question is YES. And no. He is not correct. Not in a hypothetical or technical or spiritual or moral or any sense.
I'm with you on this one Prof. Dershowitz. What good is the law if it does not protect the innocent. The law must be tempered not only by mercy, but in the case of indisputable innocence - justice. The mere fact that it was constitutionally procedureally correct should not matter. Innocence is innocence or else the entire system of law is a sham.
I always find it interesting that many of us who claim to be pro-life also support the death penalty. The death penalty has not proven to be any more a deterrent to murder than life imprisonment. It does not work and it diminishes us as a people as does abortion.
Bcaldwell-
We may never
Agree on anything again-
But I respect your position.
Scalia's opinion flies in the face of 200 years of precedent. Sure you could have the governor or the President grant a pardon, but even that is ridiculous given the hypothetical that a guy has indisputable evidence of innocence. The criminal system especially is set up to justify the charges made aginst a defendant. If the prosecution fails in that task then the defendant goes free.
It's almost as if Scalia and Thomas are saying that innocence proven during an appeals process is a mere technicality which is untenable. In reality, I'm not sure this hypothetical( a previously dead "victim later showing up alive) would ever make it this far. But, I suspect that the word "alleged" plays a big role in the thinking. Either way though, if there is that level of doubt, you have to side on the side of life.
We can have debates on strict constuctionism on things like the 2nd Ammendment and the 4 th Ammendment, et al, but you cannot split hairs when evidence of innocence is overwhelming. On that there is no debate and on that even the Catholic Church of today would be unequivocal....now 500 years ago....not so sure
If we're speaking in terms of Christianity I'd add the 'acts of war' along with abortion, capital punishment.
Human beings taking human life is represented uniformly in the New Testament and none are provided for.
Jesus was killed by capital punishment in an act of justice gone awry.
I don't know many Christians that are universally against taking human life. In fact American Christians seem to have an incredible blood thirst for war and capital punishment while against abortion.
It's not clear to me why.
Thank you for mentioning that since it is so easily left out.
Many of them simply don't understand what they read in the Bible. They think the words of Christ are precious, but are too stupid to implement them.
The law protects neither the innocent or the guilty. It protects lawyers, judges and court employees. Court decisions are allegedly based upon evidence. Rules of Evidence determine what can be allowed as evidence. Crucial facts may be excluded. There is no guarantee of truth nor of full facts disclosed as input for decisions. Thus the court system becomes a potential system of garbage in and garbage out. Add to this the quality of representation depends upon the ability to pay. There is no Constitutional right to legal representation in the courts. The Courts are a pastime for the rich and powerful. Poor vulnerable persons are used for income by predator attorneys.
This is the first correct analysis of jurisprudence in America I've seen!! You need to add to that list the media. ie "fairness" is not only for the rich and powerful, but for those who can garner the media's attention. See WSJ op/ed today entitled "Rethinking the Corporate Crime Spree" for concrete examples...
Mencken:
You are absolutely correct. Our justice system is adversarial: one side "wins" and the other "loses". As a result, there is a constant temptation for lawyers and judges whose ethics are week, who will do "whatever it takes" to win. Our trials ought to be a search for truth. Germany, for instance, uses a multiple judge system, and lawyers on both sides are supposed to be advocates for truth. The issue for all of them is that they "win" when the case is judged truthfully, no matter which side "wins." This is what is missing from our system.
Pr Chris
menckenlite: As a court employee, I have to agree with you, 100%. I've seen too much shit to think otherwise.
Menchkin,
Top notch!
Utter nonsense!
The law endeavors to protect the innocent by creating a multilevel framework to ultimately discern the truth. Does it function 100% properly 100% of the time? Of course not, nothing does.
The rules of evidence are intended to try the accused for only the crime charged and nothing else. Again, 100%? No, but having no rules of evidence would result if greater injustice.
The expensive attorney doesn't always win, and some extraordinarily talented lawyers work in the public sector. They simply aren't as motivated by money as some other types of lawyers.
The Sixth Amendment provides for assistance of counsel in a criminal matter, so there is indeed a Constitutional right to legal representation.
By all means, get a law degree and be the change you want to see!
>>>Scalia's opinion flies in the face of 200 years of precedent.
It really flies in the face of many more centuries of precedent, going back to the Magna Carta and beyond. Scalia isn't fit to judge a cat show.
I wonder: How many bishops will rush to declare they are willing to withhold communion to Justice Scalia for his obviously dogmatically dissonant (not to mention inhumane) opinion? And since that seems unlikely, how about a simple phone call to let this particular high profile Catholic know that
extreme arrogance (even under the guise of 'thoughtful and careful consideration') is still considered a sin?
Scalia seems to be saying that one is innocent until proven guilty, and after that it's all over. What's the point of even having appeals courts if innocence is not a defense, and the only grounds for appeal are instead arcane technicalities of procedure? Those technicalities, after all, are only in place to see that guilt or innocence are judged fairly, therefore that question itself is the very reason for a system of justice. There are no higher grounds for appeal, and certainly no better reason for "letting someone off," as the saying goes. The assumption that procedure trumps truth is the kind of arrogance I don't think even Scalia wants to try to defend before his god. How a man with such monumental shortsightedness can be a sitting justice rather than a bean counter in some basement is beyond me.
"""So I have given this new position thoughtful and careful consideration-and I disagree. That is not to say I favor the death penalty (I am judicially and judiciously neutral on that point); it is only to say that I do not find the death penalty immoral. I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for Governor had to promise commutation of all death sentences (most of them would never reach the Governor's mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases."""
======================
So this man's morality, as stated in this case at least, is based on wanting to keep his job (being that he thinks if he disagreed with the death penalty, he would have to resign)?
ANYONE who EVER says this man is 'moral' is full of sh*t... BIG steaming piles of it... with flies flitting about...
Just as Scalia is.
"Oh... but he writes so WELL!" Bullsh*t.
I think there may be more to the story than this article presents. I imagine that there is some legal reasoning that would give Justice Scalia footing for such a seemingly untenable position. Scalia is may be accused of being many things, but an intellectual lightweight isn't one of them. Whether convincing or otherwise, he must have developed his idea and rationale on something more than lack of SCOTUS precedent.
He sided with Thomas, f'goshsakes. Tells me all I need to know.
No, thomas sided with scalia, as usual.
Here Pete-
This was put up
By TDB as an extra insight.
Alaric got me to read it.
It's very interesting.
http://obsidianwings.blogs.com/obsidian_wings/2009/08/two-readings-of-sc alia.html
Ritarita -- Your link does not work. This one does:
http://tinyurl.com/pgwqez
Thanks Piktor-
You're the King of links.
"The Supreme Court justice's shocking remarks about capital punishment are not just a distortion of the Constitution, says Alan Dershowitz, they're also an outrage against his church."
THE CHURCH ITSELF IS AN OUTRAGE.
Oh how right you are.
If you extend that outrage to all religion, I'm with you. Otherwise this is more stereotyping.
what part of the church is an outrage:
the fact that the catholic church gives more in charity worldwide than all other charitable instiitutions COMBINED
OR
the fact that over 54 percent of the worlds art is in the peninsula of italy
or
that when it comes time for a dictatorship to roll through town, the catholic church is your best chance of survival, blanche?
The same Catholic Church that rolled over for a tummy scratch when Hitler and the gang came rolling through? The Catholic Church that said practically nothing and did even less when Jews were being taken to the slaughter house in WW2? The Catholic Church that sent pedophile priests on molestation tours around the globe, to hide their disgusting activities? The Catholic Church that teaches that condoms are a bad idea in AIDS stricken parts of Africa? Opus Dei and their out in the open anti-semitism? The Inquisition?
"Or the fact that over 54 percent of the worlds [sic] is in the peninsula of italy [sic]." How on earth did you come up with that silly assertion? Yes, the world of art is much the richer for the art the Catholic Church commissioned for centuries, but that art does not constitute more than half of all Western art, much less more than half of all the art on the planet.
I'm with Smirk: there's no FREAKING way that 54 % of the world's art is in Italy, Cenerentolo.
(Please don't put a hit on me.)
Challenge #1: Citation please! [Degree of difficulty: charitable donations mean transfer of tangibles from Catholic charitable organization to poor people regardless of faith or circumstance, excludes taking money from one RCC pocket and putting it into another].
Challenge #2: Haiti is an officially Catholic country. People there are so desperately poor they are actually eating dirt pies.
Dirt pies. Really. Pies made from dirt.
Please explain Catholic generosity in light of this fact.
- cenerentolo
"what part of the church is an outrage."
This part:
The church looking the other way and giving haven to
pedofile priests, child abusers.
First, why is Scalia's Catholicism an issue. Does Prof. Dershowitz want Scalia to use his Catholicism to decide points of law on other issues or only the issues that are congruent with Dershowitz's world view?
Second, the catholic church affirms that the state has the right to execute those who are found guilty of certain crimes. It is true that on occasion some innocent individuals may be executed but the Church only prohibits absolutely the direct killing of someone who is thought to be innocent and this is what Prof. Dershowitz fails to understand. For when the legal system applies a particular punishment, even if mistakenly, it is not killing an innocent person "intentionally."
To bcaldwell - There is no contradiction between prolife and the death penalty for Roman Catholics. Catholics find "innocent" human life inviolable while those who are judged guilty are not subject to the same protection.
First of all it is not surprising that Scalia is happy to "find" that the death penalty is not immoral since he likes his job; but it is a purely subjective "finding", one based on the interpretations of obscure teachings (being that evidence of those teachings is all second-hand) and thus are themselves completely subjective. In other words his finding is based not upon any empirical evidence or objective fact but rather upon faith.
Second, even if we accept this "finding" regarding the question of morality, it does nothing to make reasonable the bizarre legal opinion that a man previously found to be guilty who subsequently proves his innocence in fact, is still subject to the original sentence because the proceeding that ascertained said guilt contained no procedural flaw.
Unfortunately, history tells us that "Thou shalt not kill" has never been "found" to be binding upon the Catholic, or any other Christian church, so his personal interpretation is at least compatible with the practices of the cult which has never had a problem "finding" reasons to condone the slaughter of innocents.
I thought justices were supposed to interpret the law. What's the judge's religion have to do with that? Why should judges invent new rights in the Constitution? Couldn't the Governor pardon this guy? Couldn't the legislature intervene? Why do people want judges to be kings who can do anything? What is our country turning into?
The problem with a pardon as procedure is that its discretionary...So he can't get one as of right by convincing a habeas judge of being "actually" innocent
Then the legislature needs to create a law that permits it. Let's make those turds do their job instead of giving judges incentive to create imperial dictates.
Mr. Dershowitz,
Your ignorance of Roman Catholics' understanding of their role in public life is offensive to billions Catholic's around the globe. While I have no reason to believe that you harbor any ill towards Catholics in the United States your ignorance and the actions that you choose to take with it is no different than those prejuduced minds that questioned the ability of Catholics to participate in public life throughout the 20th Century. How can you abruptly assume that Justice Scalia's view of the Constitution and his faith cannot coexist? Your example, John F Kennedy relied on the works of John Courtney Murray when asked to reconcile his faith and his politics. Murray insisted that the followers of the Catholic Church, the last organized religion to teach natural law, were fully capable of executing and justifying their faith while still adhering to the Constitution. That faith includes a variety of views of the death penalty. Does your class cover the debate over the Thomist view of the death penalty versus the Natural Law approach? Both schools of thought have had profound impacts on how the Roman Catholic Church views human life. Perhaps your article could have proved more insightful and less offensive had your article explored the nuances between the two approaches and where Justice Scalia's approach falls or fails to fall between the two. Minds more informed on Catholic social teaching than yours can and do easily conclude that no practicing Catholic can justify the death penalty. It is a shame that the expectations of the blogosphere can override the intellectual approach expected from an academic. Additionally, do you want to live in a country where Justice Scalia, or Vice President Biden are asked to justify their decisions in light of their faith? I do no
as a catholic i am embarrassed that a person can say those things and consider himself one of us.
it shows a level of dishonesty that gives lie to his writings about resignation.....
yea, it is written that he would do so, but WHEN he loses the debate (which he will as long as you dont go on a month heroin binge before) he is going to grow a field of sophist maize to rationalize his staying on the court, just as he did with not resigning already
I don't know why dershowitz even had to discuss this decision from a theocratic point of view. Reading this article I was more reflective on the confirmation hearings for Justice Sotomayor and that pack of crackers challenging her 'temperment. I wonder if this bully was up for confirmation now how he would pass that muster.
And to think that one of the right wing's talking points against Sotomayor's confirmation was that she would not be able to "hold her own" intellectually against the likes of Scalia. Ha!
I don't recall this one, but I'll take your word for it. Actually, she could kick both Scalia'a and Thomas's butts with one hand tied behind her!
Scalia has been known for this upside down value for decades and for just as long I have craved for someone who can get national attention to take him to task for it. If it is form over substance, the law is an arbitrary cruel exercise and those who would participate fundamentally immoral. I have never understood how someone as intelligent as Scalia could be so blind on so profound an issue.
What if the Governor is off in Argentina? What if the legislature is off on a junket? If the court decided he belonged on Death Row, then why should the decision that he no longer belongs there be in the hands of the other branches? Interpret, like a translator? Judges JUDGE, that's their job. And if they judge they were wrong, then they should right that wrong.
Ritarita's post (see above) of the "extra insight" reveals something interesting about Scalia's mentality and the choices he makes in a real life and death issue like this one.
Thank God his opinion was a dissent.
I would LOVE to see Dershowitz and Scalia debate!
On "60 Minutes" Scalia got into a brief discussion of torture, and he disagreed that it is cruel and unusual punishment (therefore a violation of the Eighth Amendment).
That was when I really saw how this man can delude himself. He is evil. Charming to a lot of people, but evil.
This guy is a catergory 5 BLOWHARD.
The fact that Scalia and Thomas cannot find constitutional justification for absolving an innocent, convicted man highlights the foolishness of strict constructionism.
I have a simple question on this that hopefully no one will read anything into on this board. Perhaps Scalia and Thomas, as strict constructionists, are merely shining a light on what they perceive to be a possible hole in the law (if interpreted their way)? Perhaps they're saying, "Fix this, so we can remove more emotion from the courts"? Perhaps if this is "fixed" then this question won't come to the court again? Would it be such a bad thing if, as a result of this, Congress proposed a law (a REAL law, not just a spending bill) that cleaned this up, one way or the other?
Actually, I think it's more deliberate blindness to the fact that executing an innocent man is in direct violation of the 8th Amendment, which prohibits cruel and unusual punishment.
Scalia and Thomas claim to be strict constructionists AND originalists, which essentially allows them to apply their ideologue tendencies to any legal question. Both will argue against equality for gays by saying the 14th Amendment was meant to apply to blacks and former slaves, and no other "persons". Scalia claims to be against incorporation, but his decision in Heller makes it obvious he would incorporate the 2nd Amendment (which I have no problem with). He and Thomas are both high order hypocrites and ideologues.
AMEN! The Founding Fathers were smart, pragmatic people who were undoubtedly wise enough to know that they didn't know everything and could not anticipate the evolution of society and technology. And as in any negotiation, compromises were made during the creation of the constitution.
Strict constructionism is the judicial equivalent of evangelical religion...its proponents are basically claiming to know exactly what was in the minds of the creator--be that the Founding Fathers or God himself. As Professor Dershowitz points out--logic and morality have nothing to do with it--it all rests on what these judicial and/or creationists--think their creator meant.
Agreed. Dershowitz is arrogant, but he's correct, and his analogy exposes the hypocrisy of Scalia's position. Scalia is a religious extremist -- and brilliant, and disingenuous, so no surprise that he can internally reconcile his faith with his constitutional fervor. Would pay to watch that debate.
See my comment. I suggest that Daily Beast readers take up a collection and fund this debate - Bill Moyers to moderate. What do you think?
That's a really
Good analogy Carouzer.
I'm going to think of it that way
Going forward.
I'll believe Thomas, in particular, is serious about being an Originalist when he resigns his judgeship and banishes himself to a cotton plantation to work for nothing... for obvious reasons. Isn't that, after all, what the people who wrote our Constitution believed someone of Thomas' skin color belonged?
Otherwise, he's just talking the proverbial sh*t, just like the rest of his delusional party.
LOL
they pick and choose the "founders'" will just as they do their "Fathers' "
Sometimes I just can't believe these people are for real...
While I'm usually one of the first to criticize Scalia and I definitely disagree with his dissenting opinion, I'm not about to scold him for making a decision counter to his religious upbringing. He has a duty to judge impartially, not beholden to any organization. People were worried that Kennedy would be a puppet of the Pope because he was a Catholic; this article basically gives that sentiment credibility.
He learned his staunch conservative principles at someone's knee. Clever, but not original.
Resigning would take the kind of intellectual and moral honesty Scalia is obviously incapable of. It's a Catch 22. When does a Supreme Court Justice become so flawed he must be removed? Does he have to foam at the mouth and claw his own eyes?
Scalia and Thomas are two fine arguments for limiting the terms of the Supreme Court Justices. The American people should not be shackled to these two and thier bizarre quest of "Literalism" for life.
Thank you.
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