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Law Prof Says Scalia’s ‘Red Meat’ Dissent Makes Court Makeup an Issue

Posted Jun 16, 2008 6:58 AM CST
By Debra Cassens Weiss

A Harvard Law School professor says the makeup of the U.S. Supreme Court has been thrust back into the spotlight, thanks to a recent dissent by Justice Antonin Scalia.

Scalia’s dissent in Boumediene v. Bush warned of “devastating” and “disastrous consequences” that will result from the majority decision giving habeas rights to detainees at Guantanamo Bay. Referring to released detainees who returned to the battlefield, Scalia wrote that the majority decision "will almost certainly cause more Americans to be killed.”

In an interview with the New York Times, Professor Laurence Tribe of Harvard Law School said Scalia’s opinion was reminiscent of his dissent in Lawrence v. Texas in which the Supreme Court struck down a Texas criminal sodomy law. Scalia’s dissent warned that state laws against bigamy, same-sex marriage and incest were called into question by the decision.

“His tendency in case after case is to paint his dissenting view in the most inflammatory terms possible,” Tribe said, “giving red meat to those who want to make the Supreme Court their whipping boy.”

Conservatives apparently took the bait. Republican John McCain told a crowd of 1,500 during a campaign town-hall style meeting that the ruling is “one of the worst decisions in the history of this country,” the Times story says.

Representing the liberal view, Kathryn Kolbert, president of People for the American Way, said that if one more Bush justice had been on the court, the decision likely would have gone the other way, the newspaper reports. And Democrat Barack Obama said the decision was “an important step toward re-establishing our credibility as a nation committed to the rule of law.”

Comments

1.

RL
Jun 16, 2008 11:01 AM CST

I can’t help wondering why his co-dissenters didn’t ask him to tone down the rhetoric, stick to analyzing the law, and leave the rest for an appearance on Bill O’Reilly’s program.

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2.

Harvard Hollenberg, Esq.
Jun 18, 2008 11:28 AM CST

6-18-2008

Ladies and Gentlemen:

I have just finished perusing the recent United States Supreme Court decision captioned Boumediene v. Bush.  I am really disappointed by the shallowness and paralogic of Justice Scalia’s dissent.  If we cannot rely on Justice Scalia’s reputation for rigorous intellectualism, all of our constitutional debates stand to be impoverished.

According to the majority, Congress intended to provide for detainees at Guantanamo substitute safeguards, through legislation, to approximate the guarantees contained in the Writ of Habeas Corpus.

Congress failed on two fronts.  The procedures contemplated invited error by failing to provide for the admission of evidence tending to prove that detainees did not deserve enemy status.  The procedures were also prolix.  Asking detainees to continue waiting, after six years of confinement, to see whether the Secretary of Defense might exercise his discretion and grant them a hearing was inconsistent with the very purpose of the Great Writ, which is to test the lawfulness of Executive deprivations of liberty, presumably within some reasonable time frame.

Justice Scalia, who loves to read the Constitution by holding it up to a mirror, i.e., backwards, opined that the Great Writ does not run to territories over which the U.S. may have total control, but does not exercise formal sovereignty.  However, the Supreme Court is limited to deciding cases and controversies before it.  If the entire gist of the matter was that Congress INTENDED to grant due process rights to persons under US control, but missed the mark, the fact that the Great Writ in England could not be extended to Scotland is quaint but immaterial.  Moreover, as the majority pointed out, Scotland had its own courts to adjudicate unlawful detentions; prisoners at GITMO have no recourse to Cuban courts.

Justice Scalia also played the fear card, which always counts on the ignorance of the people.  By citing cases where THE MILITARY, NOT THE COURTS released prisoners who later proved to be violent and murderous, he was seeking a general inference that the right to a Writ of Habeas Corpus is coterminous with a right to release.  It is not.  The Writ tests the lawfulness of detention and in all its venerable history has never created a barrier to the continued retention of those lawfully in government custody.

Finally, Justice Scalia seems alarmed that prisoners under US custody and control anywhere in the world might be accorded the right to test the lawfulness of their detention.  But how is this inconsistent with George W. Bush’s claim that forty years from now, historians are bound to validate his George W. Bush Doctrine, which intends for “democracy” to be spread throughout Western Asia and beyond?  Isn’t the expansion of democracy to political prisoners, even when they are ours, precisely what George W. Bush claims our troops have fought and died for, and are fighting and dying for, in Iraq and Afghanistan?

Justice Scalia, when you turn from scholarship to outcome oriented decision making, could you please be more focused on which outcome you’re aiming at?

Very truly yours,

Harvard Hollenberg, Esq.
320 East 22nd Street, #2K
New York, N.Y. 10010
(212) 995-9313

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