Antonin Scalia, Hypocrisy, and the Thanatos Drive

In McQuiggin v. Perkins, decided yesterday, the U.S. Supreme Court decided by a narrow majority that actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment to consideration of the merits of a constitutional claim is a procedural bar, as it was in Schlup v. Delo and House v. Bell, or expiration of the Antiterrorism and Effective Death Penalty Act statute of limitations, as in this case. Or, in English,the Court decided that in the case of a genuinely innocent person unjustly sentenced to death, habeas corpus may still be available even if the one year statute of limitations to file has been blown. This doesn't mean the convict will be released automatically; just that his or her claim will be heard.

Of course, principled conservative Antonin Scalia is apoplectic:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a “1-year period of limitation shall apply” to a state prisoner’s application for a writ of habeas corpus in federal court. 28 U. S. C. §2244(d)(1). The gaping hole in today’s opinion for the Court is its failure to answer the crucial question upon which all else depends: What is the source of the Court’s power to fashion what it concedes is an “exception” to this clear statutory command? That question is unanswered because there is no answer. This Court has no such power, and not one of the cases cited by the opinion says otherwise. The Constitution vests legislative power only in Congress, which never enacted the exception the Court creates today. That inconvenient truth resolves this case.

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It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of ‘actual innocence’ will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault.” Bousley, 523 U. S., at 635 (SCALIA, J., dissenting). I suspect it is this vision of perfect justice through abundant procedure that impels the Court today. Of course, “we do not have such a system, and no society unwilling to devote unlimited resources to repetitive criminal litigation ever could.” Ibid. Until today, a district court could dismiss an untimely petition without delving into the underlying facts. From now on, each time an untimely petitioner claims innocence—and how many prisoners asking to be let out of jail do not?—the district court will be obligated to expend limited judicial resources wading into the murky merits of the petitioner’s innocence claim. The Court notes “that tenable actual-innocence gateway pleas are rare.” Ante, at 2. That discouraging reality, intended as reassurance, is in truth “the condemnation of the procedure which has encouraged frivolous cases.” Brown, 344 U. S., at 537 (Jackson, J., concurring in result).
It has now been 60 years since Brown v. Allen, in which we struck the Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions. Even after AEDPA’s pass through the Augean stables, no one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly deserving from the multitude of prisoners pressing false claims. “[F]loods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious applicant to be buried in a flood of worthless ones.” Id., at 536–537.

So, there. Scalia the principled conservative would rule that the Court cannot impose equitable tolling in a statute that does not expressly provide for it. The text must be followed in all things, right?

Except, of course, for the fact that Scalia doesn't consistently apply statutory or constitutional texts when they don't reach results that he favors. A minor but salient example that I've pointed out before, in Bell Atlantic Company v. Twombly, the Court in an opinion Scalia joined overturned 50 years of unbroken precedent interpreting the Federal Rules of Civil Procedure consistent with Congress's expressed policy that pleadings be liberally construed to create a brand new, tougher standard that made it easier for defendants to get courts to dismiss cases. The statute hadn't been amended, Congress had not changed the declaration of policy, even; the Court just didn't like the result.

Similarly, Scalia has said in interviews that the Fourteenth Amendment's Equal Protection Clause ("no state shall ... deny to any person within its jurisdiction the equal protection of the laws") does not apply to women, because the Framers would not have intended it do so, even though they used the broad word "person," traditionally understood to include women as well as men.

And, famously, in Bush v. Gore, Scalia joined an opinion that was not only wildly inconsistent with his previously expressed interpretation of the 14th Amendment, but which blatantly ignored the tie-breaking mechanism in Article II sec 2 of the Constitution. Moreover, Scalia joined Chief Justice Rehnquist's concurrence, which overturned the Florida Supreme Court's decision as a matter of Florida law, an area where both Scalia and Rehnquist had previously asserted (quite correctly) that the federal courts have no jurisdiction.

Oh, and that last bit--that habeas corpus review was initially limited to purely jurisdictional issues? Not so much.

All of which is to say that textual integrity is for Scalia a tool, not a goal. He rules as his gut tells him, following the text when convenient, and disregarding it in favor of some other hermeneutic when it isn't. And Scalia has long been committed to the notion that the State's interest in finality of criminal convictions is far more important than the protection of innocent defendants caught up in the mistakes of the justice system.

Make of that what you will.