Things Antonin Scalia Actually Said Theater

[l33tminion]

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. (from here (PDF, six pages), joined by Thomas)

Fortunately, Scalia was on the losing side of the particular motion being decided, but I have yet to see a quote that more clearly illustrates the problems with Scalia's brand of jurisprudence: The quote may be technically correct, but yet is so very, very wrong.

(It's also worth reading Stevens's takedown of Scalia in the concurring opinion here (PDF, three pages), joined by Ginsburg and Breyer.)

Comments

[l33tminion]

He characterizes this as a 28 U.S.C. § 2254(d)(1) claim, when it is obviously a § 2254(d)(2) type claim

I don't think that's so obvious, especially since Stevens spends a lot of time (percentage-wise, anyways) on Scalia's arguments about §2254(d)(1) and doesn't even suggest that (d)(2) is relevant.

(d)(2) allows relief if the state adjudication "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" (i.e. a "tainted jury", as you state above). But I don't think the case in question is about whether the state decision was reasonable "in light of the evidence presented". Rather, it was about new evidence omitted in the original trial.

In Scalia's opinion, he seems to think that AEDPA excludes relief based on that. And Stevens seems to agree, he just thinks that might be a constitutional issue with AEDPA ("Even if the court finds that §2254(d)(1) applies in full, it is arguably unconstitutional to the extent it bars relief for a death row inmate who has established his innocence.").

(Maybe there have been court decisions suggesting that (d)(2) applies to problems with the evidence presented at a trial, not just the jury responding in a way obviously not connected to the evidence presented? If so, I'm surprised Stevens didn't reference it in his opinion.)

Edit: To be clear, I don't know what I'm talking about and am probably confused. I just want to know how I'm confused.