Unfortunately, Scalia's right. According to the rule of after-discovered evidence (I became familiar with it when I was a reporter and covering a similar case), an innocent man can still be put to death if the evidence that could have exonerated him should have been brought forth during the original trial. There are exceptions, but that's the gist:

WASHINGTON — The Supreme Court on Monday ordered a federal trial court in Georgia to consider the case of Troy Davis, who is on death row in state prison there for the 1989 murder of an off-duty police officer. The case has attracted international attention, and 27 former prosecutors and judges had filed a brief supporting Mr. Davis.

Seven of the witnesses against Mr. Davis have recanted, and several people have implicated the prosecution’s main witness as the actual killer of the officer, Mark MacPhail.

The Supreme Court’s decision was unsigned, only a paragraph long and in a number of respects highly unusual. It instructed the trial court to “receive testimony and make findings of fact” about whether new evidence clearly established Mr. Davis’s innocence. Justice Sonia Sotomayor, who joined the court this month, did not participate.

The decision set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.

“The substantial risk of putting an innocent man to death,” Justice Stevens wrote in a concurrence joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer, “clearly provides an adequate justification for holding an evidentiary hearing.”

Justice Scalia, in a dissent joined by Justice Clarence Thomas, said the hearing would be “a fool’s errand,” because Mr. Davis’s factual claims were “a sure loser.”

He went on to say that the federal courts would be powerless to assist Mr. Davis even if he could categorically establish his innocence.

“This court has never held,” Justice Scalia wrote, “that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

We have opening statements this morning and I see they are about to take a break for lunch...Your thoughts?

Here's an article stating that Conservatives on the bench are the activists in our midst:

We found that justices vary widely in their inclination to strike down Congressional laws. Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

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Considering the current makeup of the court -- and the long-established propensity of Arthur Kennedy to lean right on civil-rights cases -- this probably isn't a surprise, just deeply unfortunate:

WASHINGTON - The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

You can read the ruling here [PDF]. Ginsburg's dissent is especially worth reading, since she thoroughly eviscerates the skewed logic the conservatives applied here. The key graf:

By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served as it was in the days of undisguised discrimination by a fire department in which members of racial and ethnic minorities
are rarely seen in command positions. ... The Court's order and opinion, I anticipate, will not have staying power.

There's also a lot of speculation about how this will affect Sonia Sotomayor's nomination to the Court, since the ruling overturned here was hers. However, what's clear also is that if anyone is being an "activist judge" here, it is the Court's right-wing faction.

As People for the American Way observed in its statement:

Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.

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In a surprise verdict for the Roberts court:

The Supreme Court ruled Thursday that the strip search of a 13-year-old schoolgirl violated the constitutional protection against unreasonable search and seizure.

In a closely watched case filled with poignant facts, the court ruled 8-1 that Arizona school officials violated student Savana Redding's Fourth Amendment rights when they searched her down to her bra and underpants. Officials were looking for pain relievers, which they didn't find.

"The content of the suspicion failed to match the degree of intrusion," Justice David Souter wrote for the majority.

The ruling involving Redding, who's now a college student, has been anticipated by schools nationwide, which must balance concerns about student privacy with adult fears of drug abuse and school violence.

And guess who the lone hold out was on the court? Clarence Thomas.

Justice Clarence Thomas was the only member of the court to decide that the search of Redding was reasonable.

The court divided more closely, though, on whether the individual school officials who oversaw the search should be liable for damages. While seven members agreed that the officials were immune from lawsuits, Justices John Paul Stevens and Ruth Bader Ginsburg contended that the school's assistant principal, Kerry Wilson, should be held liable.

"Wilson's treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it," said Ginsburg, the court's only female member.

Scott Lemieux has a great post up about the Roberts courts and how he never sides with individual rights:

In light of two controversial 5-4 Supreme Court decisions this week, Matt is reminded of Jeffrey Toobin's point that "In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff."...read on

Maybe they read his post...

I've been watching Arlen Specter for most of my life, and all I can say is, if you think he can be trusted, you're just not paying attention. He needs to prove he can't be controlled, and it's always when you least expect it. Harry Reid must have cut some kind of deal with him on the SCOTUS nominee, and while I hope I'm wrong, I predict he will be more trouble than he's worth:

WASHINGTON (Dow Jones)--President Barack Obama's first nomination to the U.S. Supreme Court could be an early test for Pennsylvania Sen. Arlen Specter as a newly minted Democrat.

Specter's announcement this week that he was switching parties after 43 years in the GOP rocked Washington and put the Democrats close to a 60-vote supermajority in the Senate.

Specter could prove a key vote in any fight over Obama's Supreme Court pick if the Republicans attempt to amount a filibuster of the president's choice to replace Justice David Souter, who is retiring.

"I would expect him to support Obama's nominee unless it's a real radical," said Roger Pilon of the Cato Institute.

Sheldon Goldman, a political-science professor at the University of Massachusetts Amherst, said Specter's vote could be "absolutely crucial" and predicted that the senator would be a strong backer of Obama's pick.

"Obama is in a terrific position," he said.

When it comes to Senate consideration of Supreme Court nominees, the Pennsylvania senator has perhaps the most colorful history of any current lawmaker, having angered colleagues in both parties.

"I supported very conservative nominees like Justice [Antonin] Scalia and very liberal nominees like Justice Ruth Bader Ginsburg," Specter said in Philadelphia Friday. "I think that's the way it ought to be."

File this under: Stupid things Republicans say.

Courier-Journal:

U.S. Sen. Jim Bunning predicted over the weekend that U.S. Supreme Court Justice Ruth Bader Ginsburg would likely be dead from pancreatic cancer within nine months.

During a wide-ranging 30-minute speech on Saturday at the Hardin County Republican Party's Lincoln Day Dinner, Bunning said he supports conservative judges "and that's going to be in place very shortly because Ruth Bader Ginsburg … has cancer."

"Bad cancer. The kind that you don't get better from," he told a crowd of about 100 at the old State Theater.

"Even though she was operated on, usually, nine months is the longest that anybody would live after (being diagnosed) with pancreatic cancer," he said.

Naturally, Bunning was called to account for his bone-headed remarks and forced to apologize.

"I apologize if my comments offended Justice Ginsberg," Bunning said. "That certainly was not my intent. It is great to see her back at the Supreme Court today and I hope she recovers quickly. My thoughts and prayers are with her and her family."

Note: Bunning's office misspelled Ginsburg's last name.

We wish you a speedy recovery, Mrs. Ginsburg.

NPR:

Supreme Court Justice Ruth Bader Ginsburg, the only woman currently serving on the nation's highest court, underwent surgery Thursday for removal of a cancerous tumor from her pancreas.

Ginsburg, 75, is being treated at Memorial Sloan-Kettering Cancer Center in New York.

Ginsburg has served on the court since 1993.

She was treated for colon cancer 10 years ago.

Ginsburg's pancreatic cancer was discovered early, in the course of a routine annual screening, but medical literature says even in this circumstance, a patient's five-year survival chances range from 10 to 30 percent.