Scalia’s epistemology

The late US Supreme Court justice Antonin Scalia was infamous, among other things, for writing (in Herrera v. Collins, 1993, concurring):

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.

In 2009, he claimed in his dissent in Re: Davis:

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.

This position is often represented in the popular media as, “Mere factual innocence is no reason not to carry out a death sentence properly reached.” Scalia is not on the record saying or writing this exact maxim but he might have defended it by asking: What exactly is “factual” – or “actual” – innocence?

In other words, how do we know that someone is “factually” or “actually” innocent of the charges? I imagine that, in Scalia’s view, the only constitutionally authorized finders of fact are trial courts, state as well as federal. At first glance, it’s merely a restatement of the commonly accepted principle: it’s up to trial courts to decide matters of fact while appellate courts should limit themselves to matters of law.

At a second glance, however, Scalia’s view is a strong epistemological statement. For legal purposes, the only valid truths (apart, perhaps, from certain generally accepted ones) are those established through constitutionally sanctioned judicial channels – that is, by trial courts.

So what if a group of people in white lab coats find someone else’s DNA in a sample, and so what if their result gets published in a respected journal and receives good reviews? It can only be recognized as fact by a court engaged in fact-finding, and for that to happen, the case must be reheard by such a court – and for that to happen on purely constitutional grounds, the original trial must be found accordingly flawed. In Scalia’s view, the Constitution does not protect the accused from errors in judgment caused by imperfect investigative technology. He suggested that an executive pardon would be an appropriate remedy in such cases. (Some states now have statutory procedures for post-conviction relief.)

I’ve come across an article discussing Scalia’s legal philosophy in relation to his theory of cognition. My interpretation is not completely off the wall, apparently. According to Prof. Lee Kovarsky (University of Maryland School of Law),

Justice Scalia’s position was grounded in an epistemology associated with law professor Paul Bator and philosopher Karl Popper. Stated generally, Justice Scalia believed that humans (and their institutions) cannot “know” the pure metaphysical truth of past events. Human institutions, lacking such epistemological privilege, instead use reliable process to produce estimates and make decisions. Criminal process therefore assigns guilt through a series of factual determinations that merely estimate reality.

However, new information often requires that prior estimates be updated. So do improved methods of assessing previously available information.

Justice Scalia perceived no reason why the truth-approximating process of state legal institutions would be inferior to that of federal ones, and so he saw no need for the doctrinal innovation necessary to facilitate actual innocence litigation.

Which leaves no channel for new information to enter the system to be processed and transformed into knowledge. That’s one obvious problem with Scalia’s appoach. Another is his belief that procedural fairness – i.e., his idea of it – is the greatest practicable precaution against wrongful convictions.

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