Bench Memos

Bruce Allen Murphy’s Scalia: A Court of One—Part 2

See Part 1

In blogging about Lafayette College professor Bruce Allen Murphy’s forthcoming biography of Justice Scalia, I’ll start with his stunningly incompetent account of Scalia’s dissent in Hamdi v. Rumsfeld (2004).

The legal question in Hamdi concerned the rights of an American citizen, Yaser Hamdi, who was being detained indefinitely as an enemy combatant. Justice O’Connor’s plurality opinion concluded that due process entitled Hamdi to a meaningful opportunity to contest the factual basis for his detention. Justice Scalia (joined by Justice Stevens) dissented from the Court’s holding, but he did so by adopting a position that was more restrictive than O’Connor’s of executive authority. According to Scalia, unless Congress has suspended the writ of habeas corpus, the federal government cannot detain an American citizen without charge but must instead prosecute him for a federal crime or release him.

Murphy spends 2-1/2 pages (pp. 318-320) discussing Scalia’s Hamdi dissent, but he gets everything wrong. For example:

1. Murphy presents the dissent as supposed evidence of Scalia’s “unwavering support for a powerful American presidency.” But among the nine justices Scalia (and Stevens) adopted the position that was most restrictive of executive authority.

2. Murphy contends that Scalia argued “in favor of a ‘blank check’ on behalf of total presidential power” during wartime. Scalia argues precisely the opposite. As he puts it in his concluding paragraph:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. 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. 

(Murphy actually quotes this passage but somehow doesn’t understand it.)

3. Murphy claims that Scalia concluded that “Hamdi was a traitor who was working with the enemy in times of war, and thus was not afforded the same protections” as other citizens. This is doubly wrong:

What Scalia says is that whereas enemy aliens can (probably) be indefinitely detained, the “tradition with respect to American citizens … has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.” (Emphasis added.) And if they are not prosecuted, they are to be released. In other words, Scalia would have accorded Hamdi the same protections as other citizens.

Further, Scalia nowhere asserts that “Hamdi was a traitor.” Scalia merely recites the undisputed fact that Hamdi was “imprisoned because the Government believes he participated in the waging of war against the United States.”  (Emphasis added.)

4. Murphy claims that “In Scalia’s world, whatever George W. Bush wanted to do in the ‘War on Terror’ should not be second-guessed by his judicial colleagues.” Murphy proceeds to quote four sentences from Scalia’s dissent but leaves the poor reader hopelessly confused by failing to include Scalia’s kicker:

If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires [i.e., by congressional suspension of habeas corpus], rather than by silent erosion through an opinion of this Court.

In short, Scalia is objecting to O’Connor’s “silent erosion” of the civil rights of American citizens, including those classed as enemy combatants, and to the failure of his colleagues to stand against the executive’s curtailment of those rights.

* * *

It’s very strange that a “scholar of American Constitutional law” (as his Wikipedia page puts it) could so badly misread a case that he addresses in such detail. I doubt that simple incompetence provides the explanation. Instead, Murphy’s incompetence seems bias-driven and result-oriented. Indeed, Murphy displays a dogged tendency throughout his biography to contend that the evidence supports whatever thesis he is positing even when it plainly doesn’t. When it comes to Hamdi, Murphy had somehow already so convinced himself of Scalia’s “unwavering support for a powerful American presidency” that he seems to have been unable to recognize that Scalia’s dissent contradicted, and thus required modification of, that overbroad thesis.  


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