Judicial murder from the Supreme Court?

Supreme Court justice Scalia’s shocking remarks about capital punishment are not just a distortion of the Constitution, says Alan Dershowitz, they’re also an outrage against his own Catholic 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.”

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.”

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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