Nino was not nice to Justice Ruth Bader Ginsburg. Writing for the Supreme Court in McQuiggin v. Perkins, holding that the draconian one year time limit on habeas review under the Antiterrorism and Effective Death Penalty Act (AEDPA), which bears President Bill Clinton’s signature, does not preclude untimely claims of actual innocence.
Why is Scalia so enraged? Three reasons. First, that’s just his way. Second, he’s offended as a textualist—a judge who believes first and foremost in sticking closely to the wording of a statute. And third, like I said, this is the latest battle in a long-standing war.
–Emily Bazelon, Slate, 2013
On Tuesday, the Supreme Court widened what it called the “gateway” to reviewing claims of actual innocence that are made long after the one-year deadline expires. It’s a 5-4 decision, split between liberals-plus-Kennedy and conservatives. The opinions, by Justice Ruth Bader Ginsburg and Justice Antonin Scalia, read like a pitched battle in a long-simmering war. At the end, Ginsburg succeeds in opening what she calls a “gateway” to court for innocence claims that blow by the one-year deadline.The trick, apparently, is that the habeas court is persuaded that there is merit to the late claim of innocence and is permitted to hold a hearing to determine whether there is a basis to excuse the late filing before reaching the question of innocence.
In theory, a majority of the Supreme Court has now agreed to such an exception. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass,” Ginsburg wrote. But she also warned that “the exception applies to a severely confined category.” It is not enough for Perkins to assert that he has evidence of his innocence. He also has to show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”Not only is this an extremely high bar, but it requires the habe court to determine the strength of the actual innocence claim in order to determine the strength of the actual innocence claim. So nice, they have to do it twice? Well, apparently so, since the test for the threshold question, relief from the untimely filing, is the same as the test for the ultimate question, grant of habeas corpus based upon innocence.
If this makes your head hurt, you’re not alone.
In dissent, however, Justice Scalia says Congress should be furious. The court is not interpreting AEDPA, Scalia says, but rather rewriting it. SOS to Congress: “Judicially amending a validly enacted statute in this way is a flagrant breach of the separation of powers.” Attacking Ginsburg’s point that allowing for an exception to AEDPA’s one-year deadline merely brings federal law into line with the states, Scalia rockets into the derision stratosphere: “With its eye firmly fixed on something it likes—a shiny new exception to a statute unloved in the best circles—the court overlooks this basic distinction, which would not trouble a second-year law student armed with a copy of Hart & Wechsler.”Ouch. But if that wasn’t mean enough, Scalia refuses to open the car door for Ginsburg.
Oh, wait, one more insult: He also calls Ginsburg’s interpretation a “blooper reel.” (Ginsburg called all of this “bluster.”)As Bazelon notes, it’s not like this is a new issue for the Supremes, as Nino has taken the position for years that the Constitution does not prohibit the execution of innocent people.
For Scalia, the moral of the story is clear: Innocence doesn’t—and shouldn’t—always win. “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,” he wrote in 2009. Scalia lost that time, too. But in the end, the man he was writing about—Troy Davis—was executed for the murder of a Georgia police officer even though seven of the nine witnesses who testified against him at trial had recanted.
If the arguments could be wholly detached from any moral imperative, Scalia likely has the better side of the argument. From a purely rational view, the Constitution defines process, not outcome. Nowhere does it provide a bottom line, that no innocent person be convicted, that no innocent person be executed. The horror of the AEDPA’s absurd time restraints is a blight on Congress and the President, but is it the court’s place to change its express terms because, well, it’s an absurd, awful law that prevents an innocent person from obtaining habeas relief?
But then, there are moral imperatives that belie our nation, and Nino’s refusal to admit to a wrong so contrary to our most fundamental principles (remember that life, liberty and the pursuit of happiness thingy, Nino?) undermines his uber-detached line of reasoning. In other words, there is a bottom line that overcomes an otherwise clear application of logic and rules, and that bottom line includes that no innocent person in the United States of America should be put to death.
Remarkably, the rationale for the hideous AEDPA time limitations, that too many prisoners were filing too many habeas corpus petitions and taking up too much judge time, really has nothing to do with the issues confronting the death row inmate who asserts his actual innocence. There just aren’t enough of them to make judges sweat due to their very hard job of reviewing the papers.
But even if they did, so what? Does anybody want to be from the country that puts innocent people to death because it’s too much work not to? Anybody but Nino, I mean.