In a “news analysis” in today’s New York Times, Linda Greenhouse makes a number of bizarre observations, including that the Supreme Court has not been “a campaign issue” for “many election cycles” and that Justice Scalia’s dissent in Lawrence v. Texas somehow “may have had the effect of investing [same-sex marriage] with an aura of plausibility that it had not previously enjoyed”—and thus may have helped bring about the Massachusetts supreme court’s 2003 Goodridge decision. Ah, yes, surely Massachusetts chief justice Margaret Marshall (aka Mrs. Anthony Lewis) was taking her cues from Scalia rather than from the Lawrence majority. Further, Greenhouse displays her usual balance, as she quotes only Larry Tribe’s psychologizing of Scalia. Greenhouse and Tribe may well prefer that Scalia acquiesce quietly in the Supreme Court’s lawlessness, but American citizens should instead be grateful that he highlights the Court’s usurpations.
Perhaps most remarkable in Greenhouse’s article is this passage (emphasis added):
In his dissent in the Guantánamo case, Justice Scalia accused the majority of harboring the “ultimate, unexpressed goal” of extending the ruling far beyond the United States naval base in Guantánamo Bay, Cuba, to give courts “the power to review the confinement of enemy prisoners held by the Executive anywhere in the world.”
To the contrary, Justice Kennedy’s analysis made clear that the decision was limited to Guantánamo by the special nature of the American installation there as well as by the remoteness of the base from any zone of hostilities.
“To the contrary”? “made clear”?!? There is little (beyond the bottom-line conferral of constitutional habeas rights on alien Guantanamo detainees) that is clear in Kennedy’s opinion, and I don’t see—and Greenhouse does not quote or cite—any part of his opinion that suggests that its principles could not apply beyond Guantanamo. As Scalia points out, Kennedy’s opinion adopts a “functional” test in which “at least three factors are relevant,” including “the nature of the sites where apprehension and then detention took place”—what, pray tell, are the bounds of “de facto sovereignty”?—and “the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.” Among other things, Kennedy distinguishes Landsberg Prison in Germany in 1950 on the ground that “the prison was under the jurisdiction of the combined Allied Forces.”
Greenhouse contends that the proposition that “prisoners at the Bagram Air Base in Afghanistan or in Iraq” should have constitutional habeas rights “would be unlikely to get any votes, let alone five, from the current justices.” Oh, really? Imagine that the Administration tomorrow moved all Guantanamo detainees to Afghanistan or Iraq. Moreover, as the modern history of the Court too amply shows, while extensions of unsound principles or malleable tests might seem unthinkable one day, soon enough—especially when they involve the expansion of judicial power—they often become Supreme Court holdings. Scalia soundly recognizes that bad reasoning in majority opinions needs to be taken seriously.
Addendum: I should have pointed out (as Greenhouse does not) that the goal that Scalia imputes to the majority rests expressly on the majority’s rationale that if habeas were not available to Guantanamo detainees, “it would be possible for the political branches to govern without legal constraint.” As Scalia observes, that rationale would require that habeas be available to aliens detained anywhere in the world, and the majority’s “inherently subjective” test would make such a result possible.