Monday, November 27, 2006

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.


Betsy McKenzie said...

Thank you, Marie, for directing our attention to the surprising role of Justice Scalia in these pivotal cases! I never thought I would be cheering his decisions, but what good news for the Constitution!

Betsy McKenzie said...

See the Turow essay here:

(apologies for the over-long URL)

Betsy McKenzie said...

Interestingly enough, a search of the Web for "Scalia AND 'War on Terror'" turns up reports from March, 2006, that 5 retired generals asked Scalia to recuse himself from the case of Hamdi v. Rumsfeld. Scalia, in a recent speech said, "War is war and it has never been the case that when you capture a combatant you have to give him a jury trial in your civil courts ... It's a crazy idea to me." And then, he turned around and, according to the Turow article,:

In one of the first war-on-terror cases to reach the court, Rasul v. Bush, a majority agreed that the foreign detainees at Guantánamo had a right to file habeas corpus petitions. Scalia strongly dissented, as one might have expected given the fact that the Constitution’s protections are generally intended for only American citizens.

It thus verged on the breathtaking when Justice Scalia wrote in Hamdi v. Rumsfeld: “Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis. ... Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.”

Hamdi, an American citizen, was supposedly captured among Taliban forces in Afghanistan. Four justices thought that the Congressional resolution passed immediately after 9/11, authorizing the use of force against Al Qaeda, permitted the president to detain Hamdi as an enemy combatant. A majority ruled, however, that Hamdi could not be held indefinitely simply on the president’s say-so and was entitled to a meaningful hearing. Justice Scalia would not even concede the first point. Instead, he declared 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 press criminal charges or let him go.

What a complex and unpredictable man! His philosophy-driven decisions may be more far-reaching than those of the liberal justices on these matters, since, as Turow comments, these decisions tend to be extremely fact-based.

Marie S. Newman said...

Thanks, Betsy, for posting the URL to the Turow article. I thought I had included it, but see now that I didn't. Stupid!

Betsy McKenzie said...

Marie, you can edit your post and add the link in a much-easier format for readers. I don't know what to do about our comments, but the link in the text is much better!