Scalia the Civil Libertarian?

The New York Times
Scalia the Civil Libertarian?
By SCOTT TUROW

The conservative ideological majority on the U.S. Supreme Court that determined the 2000 election in favor of President Bush should have grown stronger when Bush chose Justice Samuel Alito to replace the moderate Sandra Day O’Connor. Yet in carrying out its first priority, the war on terror, the White House has encountered unwelcome resistance from the court. Objections to Bush’s sweeping view of executive power have come not only from liberals and centrists, like Justice Anthony Kennedy but, more remarkably, from Justice Antonin Scalia, who may end up playing a pivotal role in future war-on-terror cases.

Scalia has long been regarded as an administration favorite. Bush suggested during the 2000 campaign that Scalia was his idea of a model justice. In the court’s Bush v. Gore decision, which brought that campaign to an end, Scalia ventured the opaque claim that candidate Bush would experience “irreparable harm” if the recount continued in Florida. Not long after, the justice’s son was appointed by the president to a top position in the Labor Department. In January 2004, Scalia took a free ride on Vice President Cheney’s plane to go duck hunting with him; later he refused to step aside in a major case involving Cheney.

Even beyond these affiliations, Justice Scalia’s flamethrowing rhetoric and his hostility to whole chapters of 20th-century jurisprudence have made him a conservative icon and a favorite face on liberal dart boards. The justice has declared that the Constitution not only creates no right to abortion but does not even protect private adult sexual conduct, blasting the court’s 2003 decision to strike down a Texas sodomy law as “largely sign[ing] on to the so-called homosexual agenda.” He has scaled back the exclusionary rule, which bars evidence obtained by unlawful police searches, and made it clear that he would like to do away with Miranda warnings.

Less noted, however, is the fact that Justice Scalia, especially in the last decade, has frequently taken an expansive view of the Bill of Rights, thus supporting defendants in criminal cases. Scalia is one of the intellectual godfathers of a strand of Supreme Court decisions, crystallized by Apprendi v. New Jersey, that revolutionized sentencing laws. Following a strict interpretation of the Fifth Amendment’s guarantee of due process of law and the Sixth Amendment’s right to trial by jury, Scalia has insisted that any fact used to extend punishment beyond normal statutory limits must be specified and proved to a jury beyond a reasonable doubt. Despite his fevered support for capital punishment, Scalia also joined a court majority in holding that the Constitution requires a death sentence to be decided by a jury, rather than by a judge, effectively setting aside every capital sentence still on direct appeal in five states.

Nor are Scalia’s pro-rights decisions limited to one arcane area.

In Kyllo v. U.S. (2001), Justice Scalia, writing for the court, deemed police use of heat-seeking technology to detect whether marijuana was being grown inside a house a violation of the Fourth Amendment’s prohibition on unreasonable searches. In a 2004 opinion, Scalia spoke for a court majority in finding unconstitutional the widespread practice of using recordings or prepared statements to the police as a substitute for the testimony of unavailable witnesses. And last term, supported by the court’s four more liberal justices, Scalia held that a defendant wrongly deprived of the lawyer of his choice gets a new trial, no matter how overwhelming the evidence of his guilt.

Justice Scalia 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, he says, should be addressed by legislation rather than the courts.

In all of this, Scalia is first and foremost a legal formalist — meaning that to him, the rules are the rules. He did not sign on to the Apprendi cases out of any special sympathy for criminal defendants — indeed, he once wrote an opinion refusing to uphold an acquittal on the grounds that the defendant’s motion for acquittal was filed one day too late. Rather, he was motivated by the assumption that, as he put it in the capital-punishment case, “the right of trial by jury is in perilous decline.” In other words, over the years the right had come to be interpreted more narrowly than in 1791.

In adjudicating the war on terror, Scalia has come down strongly on behalf of the administration and its prisoners in a number of cases. The extensive powers claimed by the Bush administration would seem to pose a problem for originalists, because the Bill of Rights was indubitably added to the Constitution to keep the new American executive from repeating the monarchal abuses of King George. Yet in a speech in suburban Cleveland in March 2003, just before the invasion of Iraq (where one of his sons would serve), Justice Scalia told his audience that “most of the rights that you enjoy go way beyond what the Constitution requires” and predicted that in war time “the protections will be ratcheted right down to the constitutional minimum.” 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.

Now the looming question is where Scalia will settle as future war-on-terror cases come before the court, and whether his unique jurisprudence will accord him a leading role. The court’s centrists, most notably Justices Kennedy and Breyer, are inclined to apply nuanced balancing tests. Weighing, for example, the need to hold battlefield captives like Hamdi against the reality that such a detention could last most of the detainee’s lifetime, both justices voted to create a right to a hearing for citizen-combatants. Yet their war-on-terror decisions have been so factbound that they offer little future guidance on the meaning of the rights involved. For instance, what happens when a citizen who is a supposed enemy combatant is captured in this country rather than on the battlefield? The other conservatives on the court — Justice Thomas and, in their limited times, Justices Alito and Roberts — have shown an inclination to defer blankly to executive power. Scalia’s originalism, too, tends to view executive power expansively, but only when it is applied to the many areas beyond the narrow preserves created by the Bill of Rights. As the Apprendi cases demonstrate, Scalia is more like the court’s liberal members in seeing the Bill of Rights as a constitutional trump when it collides with government power.

Apparently unsure about what the future holds, the administration recently has been trying to sidestep the Supreme Court altogether. It persuaded Congress to remove the habeas corpus rights the court had previously granted foreign detainees at Guantánamo. The White House also wants to rewrite the wiretapping laws to bolster the president’s assertions that he had the constitutional power to wiretap certain calls without a warrant. The president has asked the lame-duck Republican Congress to push through the change, but the newly emboldened Senate Democrats say they will block it. It appears most likely that when the wiretapping program inevitably reaches the court, the justices will have to weigh the president’s claim of inherent authority against the statute in place when the program began. The statute explicitly says its warrant procedure is “the exclusive means” to wiretap calls to or from the U.S. for national security reasons.

Scalia has seldom been a consensus builder on the court, preferring to stick with his own views rather than troll for votes. But his 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.

Scott Turow is the author most recently of the novella “Limitations,” which first appeared in a different form as a serial in the magazine.