Recently Supreme Court Justice Scalia wrote in his dissent of the Troy Davis Case:
“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.”
Troy Davis was convicted of murder with no evidence except for 8 witness (incident took place outside of a bar). Now, 7 of the 8 witnesses have legally withdrawn and reversed their testimonies saying they were coerced by police officials to identify Davis as the killer. Davis is on death row and right now the Supreme Court has never heard a case to overturn a proper habeas court ruling without DNA evidence.
Some would argue Scalia is being a “strict Constitutionalist” because there is nothing in the Constitution about overturning this court case.
When Sonia Sotomayor was being confirmed we hear a lot of, “Justices interpret the Constitution, they don’t change it.” And “empathy is not something a judge should have when making decisions.”
I would argue this is an instance where the Justices must change the law and have empathy. How strict of a Constitutionalist are you? Shouldn’t we change something this obvious?
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And now we see why no one dogma or doctrine or document can encompass all eventualities. It's created by men who by definition are not omniscient. The Constitution however builds into itself the ability to change. However, the law interpreters have to diagnose that this may be an event which requires summoning this sort of amending I'm talking about. I wouldn't necessarily say that empathy is required here. Justice (which transcends even the Constitution) is though.
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