It’s not overstating things to say that this opinion means that there are people who are in prison illegally, but now have no vehicle to seek their release from a federal court. “Apparently,” she observed, “legally innocent or not, Jones must just carry on in prison regardless.” Justice Thomas’ six-justice majority basically shrugged its shoulders and said, “Too bad, so sad, we may have messed up, but you’re going to stay in prison.” As Justice Jackson wrote in her must-read dissent (which, as a disclosure, includes a citation to some of my work on this topic), the “implications of the nothing-to-see-here approach that the majority takes with respect to the incarceration of potential legal innocents” are pretty ghastly. ![]() ![]() His Criticisms Reveal a Disturbing Fact About Originalism.
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