‘Auguean’ and ‘Faustian’ In One Opinion?

It seems Nino Scalia has outdone himself on this one.  You’ll have to read the dissent all the way to the end to see what I mean.

Thankfully it was not the majority opinion.  By a slender 5-4 margin, the federal courthouse doors remain open to state prisoners who properly take the time to develop their federal habeas corpus claims – which will almost certainly require more time than the draconian 1 year statute of limitations the AEDPA imposed – have a legitimate and exhausted federal law based objection to their conviction or prosecution, and who have made a strong showing that they are ‘actually innocent’ of the crime(s) for which they are imprisoned.

Perhaps there is hope yet.  Apparently not every Justice on the SCOTUS thinks that wrongly convicted innocent people should be relegated to seeking a pardon, as if they had done something wrong and not the state that wrongfully convicted them:

This is not to say, however, that petitioner is left without  a forum to raise his actual innocence claim.  For under  Texas law, petitioner may file a request for executive  clemency.  See Tex. Const., Art. IV., §11; Tex. Code Crim.  Proc. Ann., Art. 48.01 (Vernon 1979).  Clemency    [n.12]   is  deeply rooted in our Anglo American tradition of law, and  is the historic remedy for preventing miscarriages of  justice where judicial process has been exhausted.   [n.13]

Ugh.  Sure, bring your clemency petition to Rick Perry.

You wonder if in writing that Justice Rehnquist was meaning to be funny, given the infinitesimal odds of receiving mercy from a Governor of Texas.  But it’s almost more banal than that.  It’s about whether the high and mighty must continually be bothered with the insignificant problems of the rabble, such as that they have been wrongfully imprisoned or will be wrongfully executed.  Justice Scalia’s point is exactly the same:  to be forced to spend time and effort to properly adjudicate the guilt or innocence of another human being who has perhaps been wrongfully convicted of a crime and imprisoned is humiliating, and beneath the efforts of federal judges.  That’s what he means when he refers to the Augean stables.

Though I’m sure he felt that the hoi polloi would not be smart or learned enough to figure out what he was really saying.

Nino certainly is slipping in his dotage, revealing far too much of the elitism that he formerly kept under wraps, or at least tamed.



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4 responses to “‘Auguean’ and ‘Faustian’ In One Opinion?

  1. Working my way through Scalia’s dissent, but got stuck here: “and “judgments about the proper scope of the writ are `normally for Congress to make,'” Felker v. Turpin, 518 U. S. 651, 664 (1996) (quoting Lonchar v. Thomas, 517 U. S. 314, 323 (1996))”

    Without reading yet, though will do so later, Felker & Lonchar, about all I can imagine they are basing their holdings on is that 1) the Habeas Corpus clause appears in Article 1 which relates to the powers of Congress 2) Congress has the right to set up the Federal Courts & the rules that regulate the proceedings of those courts(which would include habeas corpus proceedings) 3) the habeas corpus clause appears in Sec 9 which deliniates things Congress may not do 4) so the end result of 1, 2, & 3 is that: As long as Congress passes no law ~completely extinguishing the right to habeas corpus then Congress may willy-nilly as it pleases statutorily regulate habeas corpus proceedings in Fed cts.

    If this is so then this is exactly what Scalia is complaining about when he writes here: “By the Court’s logic, a statute banning littering could simply be deemed to contain an exception for cigarette butts; after all, the statute as thus amended would still cover ‘something’.” Well he doesn’t like that idea. But it seems he does believe as long as a ‘something’ or ‘somebody’ can manage to wiggle into court under a writ of habeas corpus then Congress, by his thinking, can legislate the heck out of it and we all are to follow Congress’ intent in lock-stepped suit. Reminds me of something that goes along the lines of cakes & having it too.

    Anyway, that’s the thoughts so far…


  2. sorry typos/grammar…gotta run to work..


  3. mechtild jd (@mechtild5)

    Note: the necessary & proper clause does not apply to Sec 9.

    Wonder if the habeas clause had been placed in Article III, Sec 2 or Article VI, whether thinking as to extent of Congress’ right to regulate habeas proceedings would be any different?

    (Back to work, no playing around. Lol)


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