Reading Justice Scalia

Antonin Scalia is widely regarded as a brilliant jurist in the legal community. His intellectual prowess is unquestioned by those who agree and disagree with him. In reading his opinions, it is clear that his education is broad and deep and his wit is razor sharp. He uses a rhetorical format that relies on abstract principles, precedent and history to build solidly convincing and, occasionally, infuriating opinions. Recently Justice Scalia, joined by Justice Thomas, dissented in the petition of Troy Davis for writ of habeas corpus. Justice Stevens concurred in granting the petition and, like Scalia, took the unusual step of issuing an opinion on the petition. The opinions of Stevens and Scalia are not only in opposition, but take on a recriminatory tone. I am not a Scalia fan, but I was taken aback by this opinion. At first glance it is as though the two men were not looking at the same petition. In a way, they are not. Although each sees the same words, their vastly different perspectives lend different weight to the arguments presented by each side. Stevens is concerned with the possibility of executing an actually innocent man while Scalia seems concerned with the two problems. First, the broadening of federal habeas corpus review and second, the questioning of the constitutionality of 2254(d)(1).


It would be unfair to assume that Scalia does not care if an innocent person is executed. Rather, he has confidence that the constitutional safeguards currently in place make that impossible and not just unlikely. In this case, Scalia appears confident that the system has worked and is unsympathetic to the argument that procedural barriers have stood in the way of truth. The procedural barrier being the Anti-Terrorism and Effective Death Penalty Act, Section 2254(d) of the act states that:


(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Davis was convicted based on numerous eye witnesses and he even put himself at the scene. Since his conviction in 1991, all but two witnesses has recanted their testimony. The witnesses now claim to have been coerced by police. SCOTUS ordered the district court to hold an evidentiary hearing to determine whether evidence that could not have been obtained at the time of trial "clearly" establishes Troy Davis's innocence. According to Scalia, the evidence has already been examined and the result is reliable. Imagine the judicial burden of cases more than two decades after the crime. In order for the system to function, it must be able to rely on testimony given under oath and subject to cross examination. For Scalia, the judicial and political safeguards protect the rights of the accused and going beyond that is unwarranted by the Constitution and impractical in application. Justice Scalia may be cantankerous, but he does have a point. The problem for Justice Stevens and many others is that a system designed to protect the rights of the accused that has historically been less protective of racial minorities does not warrant the confidence Justice Scalia places in it when a man's life is at risk. I look forward to the district court's review of the evidence.