Scalia Dissents
7June 12, 2008 by Tyson Wynn
The big news today is that the Supreme Court has issued a 5-4 decision bestowing habeas corpus rights on enemy combatants held at Guantanamo Bay, Cuba. The liberal wing of the court has struck down many precedents and shifted more power from the Executive and Legislative branches to the Federal Judiciary.
The best way to get a feel for the errors made in a decision by the liberal half of the court is the read Scalia’s dissent. It proves helpful today, too. You can read it here (scroll way down, begins on page 110). For now, I give you just his conclusion:
The Nation will live to regret what the Court has done today. I dissent.
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I probably don’t need to mention that 7 of the 9 justices were appointed by Republicans.
We widely recognize that Republicans can and do make some awful choices. If this is the kind of disaster we get with Republican choices, just imagine the destruction to be wrought by Democrat selections. And, it goes without saying that all four of those who judged rightly are conservative choices.
OUCH. OUCH. OUCH. Now that’s a dissent!
“A mere two Terms ago in Hamdan v. Rumsfeld… ..four Members of today’s five-Justice majority joined an opinion saying the following: “Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.”
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“Turns out they were just kidding. For in response, Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions.”
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“What the Court apparently means is that the political branches can debate, after which the Third Branch will decide.”
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“What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.”
I realize I am entering hostile territory posting on this matter, but I respectfully disagree with both Roberts’ and Scalia’s dissents. In my view, “Boumediene” represents a necessary attempt to wrench U.S. foreign policy back toward adherence to some conception of rule of law, and end the Bush administration’s attempts to create legal grey zones that evade both domestic and international law.
Another aspect of both dissents that I find troubling is the general disdain the two show for the legal profession. Roberts dismisses the idea that the decision supports the rule of law “unless one means rule by lawyers…” while Scalia pronounces the legal system comprehensively incompetent in the realm of foreign policy. Both statements strike me as deeply misleading; if lawyers know anything, they know about the nature of rights and the application of the law. I say this, by the way, as a non-lawyer who is not particularly enamored of the way the law is currently practiced in the United States.
Whether one is conservative or liberal, commitment to the rule of law should be something on which we agree. That we may find ourselves in a partisan shouting match over the legality of the Guantanomo Bay may be suggestive of just how badly the administration has prosecuted the war on terror.
You cannot destroy the village in order to save it. And you cannot hope to preserve the rule of law by ignoring its application when the going gets tough — that is precisely when the rule of law is most important.
RSU Prof,
You knew before you posted that I was going to disagree.
If we need the input of attorneys so badly, what’s wrong with allowing all the lawyers who inhabit the executive and legislative branches carry out foreign policy as they have done for years?
Wars are not fought–and should not be fought–in United States courtrooms. They are messy things on battlegrounds and fronts that are (thankfully) far from here. The judiciary has repeatedly moved the bar in this matter. Each time it has, the executive branch has done its best to comply, only to have the rug pulled out from under them again with the next ruling.
Why, of why, she Americans be thrilled that the unelected branch of our government with life tenures is now making vast foreign policy decisions? At least in the current situation all the Bush haters can mobilize and change foreign policy at the ballot box. How do you change a country’s foreign policy when lawyers with life tenures make the decisions. You may like it now because it supports your opinion. When it does not, you’ll be thrilled for a later court to change it’s mind.
And lastly, where are the shouts for stare decisis now?
I did indeed know that we would differ, but I value your opinion enough to engage in a respectful bit of eristic debate. I think its better when liberal and conservatives talk to one another rather than “about” one another. I’ll address your points by order of importance.
The point of life tenure is that it puts people in a position to protect the Constitution rather than particular interests or ideological preferences. I would argue that the Court has not moved the bar repeatedly; rather, they have repeatedly insisted that there IS a bar, and that the Bush administration has attempted to act as if there was none.
I am aware that war is a messy thing, and international law exists to try to mitigate some of the worst implications of that messiness. The fact that the administration contemplates infinite detentions for many of these detainees without benefit of a judicial process is problematical from the rule of law point of view. I would suspect that several detainees have committed acts that would easily result in convictions, but the fact that much of the evidence that damns them was obtained through the use of torture creates enormous legal problems, and the likelihood of numerous exonerations, which this administration is not prepared to allow. Moreover, some other detainees are simply ethnic Uighers whose only sin is to have been in the wrong place at the wrong time, or to have provoked the ire of some local chief, who condemned them as al-Qaeda. Without habeas, there is no way of determining guilt or innocence, which I would hope that you would agree we have a compelling interest to deterimine one way or another.
I am not thrilled that the Court has been compelled to intervene — yet again — to remind the executive branch that they are obligated to follow the law. In my view, that is a powerful invocation of the spirit of stare decisis: we are a nation of laws, and even in war we fight according to the rules. More importantly, the Court yesterday did not “make” a foreign policy decision — they rejected an executive policy + congressional statute that in the Court’s majority violated the Constitution. As John Marshall said so many years ago, the Court’s job is to say what the Constitution is, and what it permits.
Lastly, the lawyers in the executive branch are the authors of many of the worst calumnies of this administration, and they illustrate some of the worst consequences of current legal practices. John Yoo is a lawyer, and in hiw view George W. Bush — not the executive branch of the United States — was his client, and he made a lawyerly case that his client was unconstrained by the Constitution or ultimately by any law. In his advocacy, I believe he attempted to place the executive above the law, which I view as unethical. In any event, I would argue that the lawyers of the administration did their job as badly as the politicians on whose behalf they were advocating, and so I would respectfully say that I prefer to live in a world where lawyers advocate following rather than willfully violating the law.
I suspect that we may agree that arguing over Supreme Court cases is a largely subjective process: when they reach a verdict that satisfied our ideological preferences we cheer and commend them on their judicial acumen, and when they contradict our preferences we howl about judicial activism and obiter dicta from the bench. Such is life.
I await your response…
I don’t have time right now to answer at length, but here’s a bit.
1. Life tenure: Life tenure does put people in a position to protect the Constitution OR to destroy it with impunity. And, I believe the federal judiciary should have life terms. However, the check on the judiciary (impeachment) is not used enough. We see vetoes and overrides a lot in the executive and legislative branches (when a president has the stones to use his veto pen). But people (media mainly) would go into a tailspin if impeachment were ever started against a justice because–though they get to say what the Constitution says–the people have an inherent right to decide whether they have decided rightly.
2. The bar has moved repeatedly. The history leading to this case and decision shows that it has, and Scalia documents it. Every new order from the courts have been the impetus for the executive and legislative branches to respond according to the orders’ directions. Then, as Scalia points out, the Court says, “Just kidding.”
3. Why do folks on the liberal side of the spectrum keep trying to characterize WAR as the same thing as domestic law and order matters? I guess we would have been better off if we had just allowed some of our more vicious allies to have had custody of the enemy combatants. We could have seen how they were treated then.
4. So your view is that the Executive branch views itself as so far above the law that now that the Court has issued its order the President says, We’ll abide by it. That’s respecting the law where I’m from.
5. I have no problem with the court disagreeing with my personal preferences. When they do it haphazardly and irresponsibly, I have a problem. Let me ask this, would you be among those who agree that Roe v. Wade is bad law, though I have an inkling you personally agree with what it accomplished (which is, I believe, J. Ginsburg’s position)?
In closing, you seem to be under the misapprehension that I am a Bush-lover of some sort. I’ll be honest, I have been gravely disappointed by the Bush administration on many levels, and mainly because he has not been conservative enough. He’s done some things well (e.g., the war, Supreme Court appointments (with the exception of that Harriet Myers mess), but other things have been disastrous for conservatism (which things should endear liberals to him in a huge way, though it seems only to have angered them to ever deepening degrees).
I am a far-right conservative. I am not, however, a Bush kool aid drinker. I do not get all my news from Fox News Channel (I can’t stand Bill O’Reilly , for the record). I don’t take marching orders from Jerry Falwell (or the son who succeeded him). I was fortunate to be too young to consciously remember Jimmy Carter’s presidency, and I’d rather not have to live through the worse-than-Jimmy Obama.
Let me leave it at this. Ascending to the federal bench does not bestow upon one an infallibility, nor does it vest one with the privilege of usurping the powers of the other branches of the government without reprisal. Your five-person majority just gave America another huge reason to vote for the more conservative candidate in the next election (not that he’s conservative enough).