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.”
He then notes that Scalia is a devout Catholic, a subject Scalia has addressed over the years in the context of judging:
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.”
Even if, as Alan writes, Scalia interprets the Church's opposition to the death penalty as not applying in extraordinary cases, how can he justify the killing of one who might be innocent?
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?
It's Scalia himself who has brought religion into the death penalty argument.
Ordinarily I would not include a justice's religious views in a criticism of a judicial opinion, but with regard to capital punishment, it is Justice Scalia who has introduced the religious dimension. I am simply trying to hold him to his own published standards.
Alan is now challenging Scalia to a debate:
I hereby challenge Justice Scalia to a debate on whether Catholic doctrine permits the execution of a factually innocent person who has been tried, without constitutional flaw, but whose innocence is clearly established by new and indisputable evidence.
Alan says the stakes are high for Scalia because if he loses the debate, then
it is clear that his constitutional views permitting the execution of factually innocent defendants are inconsistent with the teachings of the Catholic Church — then, pursuant to his own published writings, he would have no choice but to conform his constitutional views to the teachings of the Catholic Church or to resign from the Supreme Court.
