Scalia, Thomas not bothered if the innocent are executed

[Yoink]

I'm curious as to how you think you know what Scalia and Thomas want. The plain fact of the matter is that the law doesn't allow them to meddle in this issue. The Anti-Terrorism and Effective Death Penalty Act specifically removes from federal jurisdiction consideration of any matters in state capital cases except clearly erroneous applications of federal law. If there were no such applications of federal law (and I haven't seen any claims that there were), federal courts have no authority to step in. Period.

This is the law. If you don't like it, you are more than free to contact your representative and senator in an attempt to remedy the situation. I admit, I'm not thrilled with the possible outcomes of AEDPA either. But it is the law.

I'm not clear on how AEDPA--or any congressional law--could interfere with the Supreme Court's right to hear a habeas petition.

 

[FlamingMoe]

I'm not clear on how AEDPA--or any congressional law--could interfere with the Supreme Court's right to hear a habeas petition.

The Constitution gives Congress has the explicit authority to determine the jurisdiction of federal courts.

Article III, Section 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

 

[Yoink]

The Constitution gives Congress has the explicit authority to determine the jurisdiction of federal courts.

Article III, Section 2:

It would be a very bold reading of that provision that would grant Congress the right to say to the Supreme Court "sorry, we've decided that habeas cases are out of your purview."

On your reading no Congressional law need ever pass muster with the Supreme Court. All Congress would have to do is append a "Sorry, the Supreme Court can't question this" clause to every bill. Is that your view?

 

[FlamingMoe]

It would be a very bold reading of that provision that would grant Congress the right to say to the Supreme Court "sorry, we've decided that habeas cases are out of your purview."

On your reading no Congressional law need ever pass muster with the Supreme Court. All Congress would have to do is append a "Sorry, the Supreme Court can't question this" clause to every bill. Is that your view?

This is what the plain text of the Constitution says. The only way around it is to invent things that just aren't in the document. This is a stupid thing to allow, since what someone else might invent could be vastly different from what you or I might invent. There's no check on invention of words in the Constitution.

What you or I think of the clause granting Congress the authority to limit the jurisdiction of the federal courts is irrelevant. The power is expressly granted to Congress. Therefore, they have it.

 

[Yoink]

this is what the plain text of the constitution says. The only way around it is to invent things that just aren't in the document. This is a stupid thing to allow, since what someone else might invent could be vastly different from what you or i might invent. There's no check on invention of words in the constitution.

What you or i think of the clause granting congress the authority to limit the jurisdiction of the federal courts is irrelevant. The power is expressly granted to congress. Therefore, they have it.

ron paul!

ETA: that's weird--most of the capital letters disappeared from this post when I posted it.

 

[FlamingMoe]

ron paul!

Is this supposed to be some sort of refutation of the claim that the Constitution specifically allows Congress to limit the jurisdiction of federal courts?

If so, you'll have to forgive me, I'm just not seeing it.

 

[quixotecoyote]

Is this supposed to be some sort of refutation of the claim that the Constitution specifically allows Congress to limit the jurisdiction of federal courts?

If so, you'll have to forgive me, I'm just not seeing it.

I believe it was more of an exclamation that anyone seriously claiming the legislative branch can escape the checks and balances of the judicial system just by saying so is too far gone to argue with.

 

[FlamingMoe]

I believe it was more of an exclamation that anyone seriously claiming the legislative branch can escape the checks and balances of the judicial system just by saying so is too far gone to argue with.

Perhaps, but the person (or persons) arguing such garbage must be illiterate, or stupid, or both because the words are right there for anyone to see. Not only that, but Congress has exercised this power. Examples include AEDPA and some act having to do with Guantanamo appeals a couple years ago, I forget the name of the bill but it's there.

eta: such persons could also be willfully ignorant.

 

[Yoink]

Perhaps, but the person (or persons) arguing such garbage must be illiterate, or stupid, or both because the words are right there for anyone to see. Not only that, but Congress has exercised this power. Examples include AEDPA and some act having to do with Guantanamo appeals a couple years ago, I forget the name of the bill but it's there.

eta: such persons could also be willfully ignorant.

Please find a reputable constitutional scholar who asserts that Congress has the authority to block the Supreme Court from reviewing the constitutionality of any piece of legislation they pass.

 

[Yoink]

Actually, you know what, Flaming Moe, I think even on your reading this doesn't apply:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In this case the Supreme Court was not acting as an "appellate" court--they were responding directly to a habeas petition. I think this falls under "all Cases...in which a State shall be Party" where "the supreme Court shall have original Jurisdiction."

IANAL, however, so I'd be interested to hear what someone who has actually studied Constitutional law has to say. From Googling around it seems clear that this is one of those parts of the Constitution that has by and large been left untested. Be interesting to try to figure out what would happen if Congress passed a law and added "the Supreme Court may hear appeals relative to these cases" and the Supreme Court decided to hear an appeal and declared the law unconstitutional. Constitutional impasse?

 

[Yoink]

Interesting; reading around a bit more on the Exceptions Clause I find it is, indeed, a cherished shibboleth of the loony right. Ron Paul has sponsored a number of bills invoking the Exceptions Clause to strip from Federal Courts the right to review, say, State laws regarding prayer in schools and abortion and so forth. (Surprising in some ways, actually--I think some of his Libertarian supporters would be rather uncomfortable with that maneuver).

Anyway, it's clear that mainstream constitutional opinion regards these kinds of moves as radically at odds with the overall intent of the constitution.

 

[FlamingMoe]

Now I see where you're coming from. I hadn't realized this was an original jurisdiction case, and assumed it came through the normal appellate route. (A reasonable assumption, seeing as how the original jurisdiction habeas petition authority hasn't been exercised by the Court in over half a century.)

Based on my limited (still) knowledge of the case (I haven't read the opinions) I would have to tentatively disagree with Scalia in his assertion that AEDPA forecloses the petition in question. As far back as Marbury v. Madison it has been established precedent that Congress can neither expand nor restrict the Court's original jurisdiction authority.

If I'm understanding this correctly, this could be a possible safety valve for AEDPA convictions. However, it would also make the USSC's docket immeasurably thick. I don't know that it's a reasonable solution for the problem created by AEDPA.

 

[skeptical]

Please find a reputable constitutional scholar who asserts that Congress has the authority to block the Supreme Court from reviewing the constitutionality of any piece of legislation they pass.

I think the key part of that statement is "any". It is true that the constitution gives the power to congress to include "exceptions" to SCOTUS' appellate review power (but not original jurisdiction) and this power has in the past been used. See, for example, Ex Parte McCardle http://supreme.justia.com/us/74/506/case.html
Granted that this is a civil war era case, it has still never been overruled.

However, this is merely to begin to analyze this issue. The question of what exactly the exceptions power means and the limits on such exceptions has never really been fully tested in any meaningful way in recent history and is, as they say, "an open question". From "A history of the supreme court", page 142:

"Far reaching though McCardle may be, it cannot be taken as judicial confirmation of congressional ominipotence with regard to the appellate jurisditction of the highest court."

From the same page: "The power given to congress to prescribe exceptions and regulations to the appellate jursidiction of the supreme court cannot be taken to include the power to do away with such jurisdiction."

For example, I recall Sen. Helms claiming that Congress had the power to remove review of abortion cases entirely, but of course many people disputed this and it was never tested as such legislation was never passed.

From my readings in this area, the opinion of constitutional scholars seems to be that Congress has the power to provide some minor exceptions, but not the power to exclude entire classes of cases such as "abortion". However, as my constitutional law professor said: "people have obtained tenure writing on this issue because it is an unresolved area of law".

 

[Yoink]

I think the key part of that statement is "any". It is true that the constitution gives the power to congress to include "exceptions" to SCOTUS' appellate review power (but not original jurisdiction) and this power has in the past been used. See, for example, Ex Parte McCardle http://supreme.justia.com/us/74/506/case.html
Granted that this is a civil war era case, it has still never been overruled.

However, this is merely to begin to analyze this issue. The question of what exactly the exceptions power means and the limits on such exceptions has never really been fully tested in any meaningful way in recent history and is, as they say, "an open question". From "A history of the supreme court", page 142:

"Far reaching though McCardle may be, it cannot be taken as judicial confirmation of congressional ominipotence with regard to the appellate jurisditction of the highest court."

From the same page: "The power given to congress to prescribe exceptions and regulations to the appellate jursidiction of the supreme court cannot be taken to include the power to do away with such jurisdiction."

For example, I recall Sen. Helms claiming that Congress had the power to remove review of abortion cases entirely, but of course many people disputed this and it was never tested as such legislation was never passed.

From my readings in this area, the opinion of constitutional scholars seems to be that Congress has the power to provide some minor exceptions, but not the power to exclude entire classes of cases such as "abortion". However, as my constitutional law professor said: "people have obtained tenure writing on this issue because it is an unresolved area of law".

Thanks for the useful citation Skeptical. That conforms to other opinions I've read. Looking further in the same source (on Google Books), it is very explicit about the court's preservation of its right to hear habeas cases directly:

Prior to the McCardle statute, the Supreme Court could review denials of habeas corpus by lower courts either on appeals or on petitions to it for habeas corpus. The McCardle statute did no more than eliminate the first of these methods for obtaining review of decisions denying the Great Writ. But, as the Supreme Court held in Ex parte Yerger, only half a year after is McCardle decision, it left unimpaired the other method of invoking the Court's appellate jurisdiction in habeas corpus cases.

More broadly, his point is that the Exceptions Clause needs to be read in the context of the whole Constitution and its understanding of the role of the Supreme Court. The essential argument (which seems to be in line with most mainstream constitutional opinion) is this:

The exceptions and regulations laid down by Congress must not be such as will destroy the basic role of the Supreme COurt in the constitutional scheme. Reasonably interpreted, the organic clause means: "With such exceptions and under such regulations as the Congress may prescribe, not inconsistent with the essential functions of the Supreme Court under the Constitution."

Of course, such nuanced arguments are lost on Paultards who simply want to screech "but it's IN THE CONSTITUTION!"--except, of course, when it's their ox that stands to be Gored.

 

[FlamingMoe]

Of course, such nuanced arguments are lost on Paultards who simply want to screech "but it's IN THE CONSTITUTION!"--except, of course, when it's their ox that stands to be Gored.

Of course, knee-jerk reactionaries who cling to whatever justification they can dream up to continue their ridicule of someone who actually thinks the Constitution is not subject to whims and fads, despite the fact that a Ron Paul supporter has, in this very thread no less, declared his misgivings regarding a law (AEDPA) that takes advantage of the clause at issue.

I'm not surprised it hasn't sunk in.

 

[Yoink]

Of course, knee-jerk reactionaries who cling to whatever justification they can dream up to continue their ridicule of someone who actually thinks the Constitution is not subject to whims and fads, despite the fact that a Ron Paul supporter has, in this very thread no less, declared his misgivings regarding a law (AEDPA) that takes advantage of the clause at issue.

I'm not surprised it hasn't sunk in.

Except the argument here is the very opposite of saying the Constitution is "subject to whims and fads." It's saying that the Constitution is so important you need to try to understand it as a whole and not ride roughshod over the clear intent of the framers by insisting on reading every clause as if it could be understood completely independently of its context.

Ron Paul tried to use the Exception Clause to shield Texas from Federal review of laws prescribing prayer in schools; that seems much more like subjecting the Constitution to "whims and fads" to me than the careful contextual argument in A History of the Supreme Court.

 

[eeyore1954]

Fortunately Scalia and Thomas do not echo the majority opinion on the Supreme Court at the moment.

Supreme Court Orders New Look at Death Row Case

So here's a not so unusual case of a man convicted of a serious crime, in this case one that got the death penalty, without any physical evidence tying him to the crime, only eyewitness accounts. Time and time again eyewitness accounts have been PROVED unreliable. And in this case, not only that, but many of the witnesses have recanted saying they were coerced by police to say they saw Davis.

Which you would think was a value held by the US Justice system.

Not so, according to Thomas and Scalia:

In other words, according to Thomas and Scalia, being convicted by unreliable eyewitnesses constitutes a fair trial and as long as you had a 'fair' trial then it's fine to execute you, innocent or not.

here is more of that statement. Is it incorrect. the supreme court is supposed to rule based upon the law

This Court has never held that the Constitution forbids the execution of a convicted de-fendant 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 ques-tion unresolved, while expressing considerable doubt thatany claim based on alleged “actual innocence” is constitu-tionally cognizable. See Herrera v. Collins, 506 U. S. 390, 400–401, 416–417 (1993); see also House v. Bell, 547 U. S. 518, 555 (2006); District Attorney’s Office for Third Judi-cial Dist. v. Osborne, ante, at 18.

He further says if there are doubts (constitutionally). Then they should resolve that question.

If we have new-found doubts regarding the constitu-tionality of §2254(d)(1), we should hear Davis’s applicationand resolve that question (if necessary) ourselves.*

Skeptic girl says

In other words, according to Thomas and Scalia, being convicted by unreliable eyewitnesses constitutes a fair trial and as long as you had a 'fair' trial then it's fine to execute you, innocent or not.

But this is not what he said. in his opinion he points out that this claim has been looked at exhaustively (in his opinion) .

When Davis sought clemency before the Georgia Board of Pardons and Paroles, that tribunal stayed his executionand “spent more than a year studying and considering [his] case.” Brief in Opposition 14–15 (statement of Board of Pardons and Paroles). It “gave Davis’ attorneys anopportunity to present every witness they desired to sup-port their allegation that there is doubt as to Davis’ guilt”;it “heard each of these witnesses and questioned them closely.” Id., at 15. It “studied the voluminous trial tran-script, the police investigation report and the initial statements of the witnesses,” and “had certain physical evidence retested and Davis interviewed.” Ibid. “After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board . . . determinedthat clemency is not warranted.”

 

[Brown]

... If he's not innocent (and Justice Scalia repeatedly returns to discussing how no one has bought his story so far), then he gets no relief.

Still no one has bought his story, and the Supreme Court won't give him another chance: High court rejects Ga. death row inmate's appeal.

A judge who heard the evidence was not convinced of its credibility. The Supreme Court has refused to hear the case. Curiously, one thing standing in the way of the execution is that Georgia's supply of sodium thiopental has been confiscated by federal regulators. This seizure has nothing to do with the merits of the Davis case, but it gives him a temporary reprieve.

 

[The Central Scrutinizer]

Maybe they could let him out to go over to Japan and mop up the standing water in the control room of the nuclear plant.

The OP claimed they didn't care if the "innocent" were executed. And yet, the subject in question isn't innocent. Which makes the whole thread pointless.

 

[PhantomWolf]

Still no one has bought his story, and the Supreme Court won't give him another chance: High court rejects Ga. death row inmate's appeal.

A judge who heard the evidence was not convinced of its credibility. The Supreme Court has refused to hear the case. Curiously, one thing standing in the way of the execution is that Georgia's supply of sodium thiopental has been confiscated by federal regulators. This seizure has nothing to do with the merits of the Davis case, but it gives him a temporary reprieve.

But Moore concluded in August that several of the witnesses had already backed off their incriminating statements during the 1991 trial -- so it wasn't new evidence -- and that others simply couldn't be believed. He ruled that while the evidence casts some additional doubt on the conviction, "it is largely smoke and mirrors" and not nearly strong enough to prove Davis' innocence.

So those that say someone else did it, they don't want to believe, but they'll believe that he did based on statments that have now been retracted. There was no physical evidence at all, just eyewittness testimony, the weakest form of evidence, and most of that has since been retracted. While I can understand not releasing based on this, putting someone to death based on such flimsy evidence is horridous.