This morning Matt Yglesias draws our attention to a 1993 opinion by Justice Scalia, whisch asserts:
There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.The rest of the opinion is rife with Scalia's characteristic snarkiness, including this gem:
If the system that has been in place for 200 years (and remains widely approved) "shocks" the dissenters' consciences, post, at 1, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of "conscience shocking" as a legal test.Now I'm no legal scholar, but as I recall the Constitution, it seems like there's some sort of prohibition on "cruel and unusual" punishment. I know that Justice Thomas, for one, makes use of that "and" to argue for allowing punishments that are cruel, but not so unusual. But this case should probably satisfy both requirements. After all, as Scalia wrote in that same opinion:
With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.Perhaps the justice needs to recalibrate his faculties for estimating probabilities.