I don’t mean to talk Jeffrey Rosen out of the admiration that he properly has for Chief Justice Roberts, but one other passage in his New Republic essay (which I critiqued here) deserves comment. Rosen writes:
In cases where the justices do have strong constitutional views, such as the decision last week involving habeas corpus at Guantanamo, the familiar 5-4 ideological divisions persist. But, even in the Guantanamo case, Roberts dissented from the majority opinion in far more measured terms than he had used to criticize Breyer’s dissent in the affirmative action case last year. Avoiding Scalia’s hysterical claim that this decision “will almost certainly cause more Americans to be killed”–an assertion unsupported by anything in the government’s brief–Roberts respectfully argued that the liberal justices themselves had previously suggested that Congress, rather than the courts, should decide detention policy.
Let’s set aside the fact that Scalia’s claim, far from being “hysterical”, was carefully reasoned and supported by evidence (as I summarize in my third paragraph here). Far from “avoiding” that claim, Roberts embraced it, as he fully joined Scalia’s dissent. (It would have been an easy matter to join all but Part I of Scalia’s dissent.) Moreover, Roberts’s own dissent (which Scalia also joined) includes plenty of language that, if uttered by Scalia, would have been described by Scalia critics as harsh and that is certainly not as mild or respectful as Rosen suggests. For example (emphasis added):
Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.
It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim.
[In the majority’s view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.
So who has won? … Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.