Antonin Scalia, half-length portrait, standing, facing slightly right, holding book / Donald Rocker (October 1978)
From Christopher Buckley’s 50 Most Loathsome People in America, 2008:
30. Antonin Scalia
Charges: The bullet-shaped conservative justice should have stuck to his old policy of not allowing anyone to record him, because the more we see of him, the worse he seems. Scalia drew back the curtain on his legendary mind last April on “60 Minutes,” revealing the legal acumen of a gibbon with a Magic 8-ball.
Asked about the legal atrocity of Bush v. Gore, Nino bravely replied, “Gee, I really don’t want to get into, I mean this is—get over it, it’s so old by now.” This about a 2000 decision, perhaps the least legally defensible in recent history, which has had and will continue to have an incalculable impact on this country and the world. Scalia has sebaceous cysts older than Bush v. Gore.
But it was Scalia’s asinine, compartmentalized semantic parsing on torture that we hoped would give pause to his lionizers. Arguing that torture isn’t “cruel and unusual punishment” because the subject hasn’t been convicted of a crime, so he can’t be “punished,” the so-called Constitutional Originalist puts the framers in the awkward position of saying that it’s wrong to beat up a convicted criminal, but it’s just dandy to kick the shit out of him before he is even charged.
Exhibit A: “Mere factual innocence is no reason not to carry out a death sentence properly reached.”
Sentence: Broken on the wheel by James Madison.
* * *
I recommend going back and reading Buckley’s list for 2007, and earlier ones as well.
Don’t you pathetic cretins ever check your sources. That supposed Scalia quote simply doesn’t exist. The idiot that invented the quote claimed that Scalia said it in Herrera v. Collins, 506 U.S. 390 (1993). Why don’t you folks read the opinion. The quote doesn’t appear in the entire opinion, let alone Scalia’s concurrence.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be “actually innocent.” I would have preferred to decide that question, particularly since, as the Court’s discussion shows, it is perfectly clear what the answer is: there is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the [506 U.S. 390, 428] Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) “shock[s]” the dissenters’ consciences, post, at 430, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of “conscience shocking” as a legal test.
I nonetheless join the entirety of the Court’s opinion, including the final portion, ante, at 417-419 – because there is no legal error in deciding a case by assuming, arguendo, that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution * lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.
My concern is that, in making life easier for ourselves, we not appear to make it harder for the lower federal courts, imposing upon them the burden of regularly analyzing newly-discovered-evidence-of-innocence claims in capital cases (in which event, such federal claims, it can confidently be predicted, will become routine and even repetitive). A number of Courts of Appeals have hitherto held, largely in [506 U.S. 390, 429] reliance on our unelaborated statement in Townsend v. Sain, 372 U.S. 293, 317 (1963), that newly discovered evidence relevant only to a state prisoner’s guilt or innocence is not a basis for federal habeas corpus relief. See, e.g., Boyd v. Puckett, 905 F.2d 895, 896-897 (CA5), cert. denied, 498 U.S. 988 (1990); Stockton v. Virginia, 852 F.2d 740, 749 (CA4 1988), cert. denied, 489 U.S. 1071 (1989); Swindle v. Davis, 846 F.2d 706, 707 (CA11 1988) (per curiam); Byrd v. Armontrout, 880 F.2d 1, 8 (CA8 1989), cert. denied, 494 U.S. 1019 (1990); Burks v. Egeler, 512 F.2d 221, 230 (CA6), cert. denied, 423 U.S. 937 (1975). I do not understand it to be the import of today’s decision that those holdings are to be replaced with a strange regime that assumes permanently, though only “arguendo,” that a constitutional right exists, and expends substantial judicial resources on that assumption. The Court’s extensive and scholarly discussion of the question presented in the present case does nothing but support our statement in Townsend and strengthen the validity of the holdings based upon it.
[ Footnote * ] My reference is to an article by Professor Monaghan, which discusses the unhappy truth that not every problem was meant to be solved by the United States Constitution, nor can be. See Monaghan, Our Perfect Constitution, 56 N.Y.U.L.Rev. 353 (1981).
you’re right — scalia shouldn’t get FULL credit for this abomination of an opinion, he didn’t write it, he simply joined in it.
I don’t know what standards you follow in life, but there is not much in what you cite above which puts scalia in anything but a very ugly light. his opinion? an innocent person wrongly convicted would “probably” be pardoned.
better hope the pardoner is not george w. bush. he saves his pardons for the truly deserving.
i thought it interesting that scalia believes that whether something is “conscience shocking” is not useful as a legal test.
i look forward to people being able to say “ass” on late-night talk shows without the puritanical beep.
You miss the point. The quote is a bold faced lie. Moreover, you should read Justice O’Connor’s concurrence for what the Court was actually saying, specifically this little tidbit:
Ultimately, two things about this case are clear. First is what the Court does not hold. Nowhere does the Court state that the Constitution permits the execution of an actually innocent person. Instead, the Court assumes for the sake of argument that a truly persuasive demonstration of actual innocence would render any such execution unconstitutional and that federal habeas relief would be warranted if no state avenue were open to process the claim. Second is what petitioner has not demonstrated. Petitioner has failed to make a persuasive showing of actual innocence. Not one judge–no state court judge, not the District Court Judge, none of the three Judges of the Court of Appeals, and none of the Justices of this Court–has expressed doubt about petitioner’s guilt. Accordingly, the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence. That difficult question remains open. If the Constitution’s guarantees of fair procedure and the safeguards of clemency and pardon fulfill their historical mission, it may never require resolution at all.
I guess fact-checking and truth don’t matter to you people.
No where did Scalia OR the Court suggest that it was Constitutional to execute a person who was actually innocent.
In fairness to you, you were only repeating the lies that were printed in the Buffalo Beast, however, a lie repeated is a lie none-the-less.
“you people”?
you must have me confused with someone …
your mother perhaps?
why don’t you go bother christopher buckley about it instead of lurking over here. i have read the opinion, i read what you wrote, i have what others have written on the subject.
Scalia: “There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
sorry, scalia is still a nasty prick.