Justice Scalia

Best-selling author and practicing attorney Scott Turow writes in the November 26 New York Times Magazine in an article entitled "Scalia the Civil Libertarian?" that the Bush Administration has faced obstacles in waging the so-called war on terror from the Supreme Court. "Objections to Bush's sweeping view of executive power have come not only from liberals and centrists...but, more remarkably, from Justice Antonin Scalia, who may end up playing a pivotal role in future war-on-terror cases." Scalia has been criticized for, among other things, his cozy relationship with Vice President Dick Cheney (remember the duck hunting trip, following which Scalia refused to recuse himself in a case involving Cheney); the appointment of Scalia's son to a position in the Labor Department after Bush v. Gore; his opposition to Miranda warnings and the exclusionary rule; his refusal to recognize a woman's right to an abortion, making him "a conservative icon and a favorite face on liberal dart boards." According to Turow, however, Justice Scalia has also often "taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases," such as his concurring opinion in Apprendi v. New Jersey, a case that "revolutionized sentencing laws." Turow cites other examples of Scalia's pro-civil rights decisions, and states that he is "led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society...should be addresed by legislation rather than the courts."

The war on terror causes problems for originalists. In some cases, "Scalia has come down strongly on behalf of the administration and its prisoners." But, Turow says, the "extensive powers claimed by the Bush administration" are in conflict with the fact that the Bill of Rights was created to "keep the new American executive from repeating the monarchal abuses of King George." And yet, Scalia, in his dissent in Hamdi v. Rumsfeld stated that "Congress has not given the president the power to hold any American, even one who has taken up arms against his country, as an enemy combatant and instead must present criminal charges or let him go."

We now have an administration dedicated to the expansion of executive powers (see Betsy McKenzie's excellent blog entry below entitled "Dick Cheney and his long-time campaign to extend Presidential powers"). Turow opines that the Bush Administration must be wondering how Scalia will decide future war-on-terror cases. The Court's "centrists" are likely to "apply nuanced balancing tests," while the conservatives on the Court, Thomas, Alito, and Roberts, "have shown an inclination to defer blankly to executive power," which is probably one reason that the latter two were appointed. Scalia may be the wild card, because he is "more like the court's liberal members in seeing the Bill of Rights as a constitutional trump when it collides with government power."

Turow concludes by speculating that Scalia's "occasional alliance with the court's more liberal justices could be struck again in future terror cases. The result would be an unequivocal declaration that executive power must yield to constitutional liberties, even when the nation is on the prolonged war footing we seem to have adopted." I am very grateful to Turow for this insight into Scalia's jurisprudence.