More on Connick v. Thompson. I would excerpt, except that it might provide a disincentive to Read the Whole Thing.
I’m glad that Lithwick highlights the remarkable Scalia concurrence, which of course was joined by the most reactionary Supreme Court justice since James McReynolds. Scalia and Alito actually take a more authoritarian position than the defendants themselves, arguing that 4 of the 5 prosecutors who conspired in the suppression of evidence that nearly got an innocent man executed didn’t act illegally despite their own admission:
By now the reader has doubtless guessed the best-kept secret of this case: There was probably no Brady violation at all—except for Deegan’s (which, since it was a bad-faith, knowing violation, could not possibly be attributed to lack of training). The dissent surely knows this, which is why it leans heavily on the fact that Connick conceded that Brady was violated.
Yes, one explanation for why the dissent relies on the admission of Brady violations is that the dissenters secretly believe that conspiring to withhold evidence that proved to be exculpatory doesn’t violate Brady. The infinitely more plausible explanation is that Ginsburg didn’t think it required elaborate argument to establish a proposition that was admitted against interest by the defendants. Jeebus. As is so often the case, Scalia’s sneering is used to prop up arguments that collapse on the slightest inspection.
More from Healy.