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Week of August 16, 2009 - August 22, 2009

Credit where credit is due.


Mr. Blutarski walks it back.

The Single Dumbest Thing I Have Read at The Atlantic



Sullivan's on vacation, so he appears to have allowed a lazy college student to fill in for him.  The gist of this imbecilic piece defends scalia's recent dissent in the Court' s order of review in a death penalty case in which the state's witnesses have recanted. Scalia stated that the defendant got a fair trial, and that's the end of it, so he's guilty.
Which, yes, certainly sounds like a terrible thing to say. But is this a crazy view? I'm not a lawyer and can't speak to whether the court has "never held" what Scalia says, or whether Davis actually had a "full and fair trial." I hope neither of these things is true. But if they are true, why would it be so surprising? Procedural rights (like the right to a lawyer or the right to avoid self incrimination) do not guarantee a specific outcome (like the correct decision in a case). It is possible to imagine a fair trial that respects everyone's rights but nonetheless reaches the wrong conclusion.
I think procedural rights are useful in large part because they prop up substantive considerations that our society values -- like guilt or innocence when guilt or innocence is deserved. But an alternate view of procedural rights -- or a view that says, simply, that it's not the role of the Supreme Court to decide these things -- doesn't seem like it's molded out of unalloyed craziness.
 
Yes, it is a crazy view.  These procedural rules are supported by a substantive guarantee against cruel and unusual punishment in the document that the Court is supposed to construe.  So in this warped view of the world, if all the boxes are checked and it comes out later that you're innocent--you die.  But hey--you're not a lawyer; have done no research and omitted any reference to the main constitutional provision that might have something to say about your theory.  Why, precisely, is this person qualified in ANY respect to opine on these issues?  
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