The Corner

One more thing on Justice Breyer and the Hamdi case

Dan, I think you’re also overstating the Justice Breyer’s attachment to “the conservative bloc” in Hamdi. How much of a conservative bloc could it have been if no member of the Court’s current conservative bloc was in the group that Breyer joined? (Justice Scalia was in dissent for the reasons mentioned in my last post; Justice Thomas disagreed with the plurality and opined that the court should stay out of matters involving the wartime detention of enemy combatants. Chief Justice Roberts and Justice Alito were not yet on the Court.)

Hamdi was a significant departure from precedent (Ex Parte Quirin (1942)) holding that the Court could not grant habeas corpus to enemy combatants, including American citizens. The fact that Breyer joined “the conservative bloc” (Justices O’Connor, Kennedy and Chief Justice Rehnquist) does not mean he was taking a conservative position — it means he was taking a less radical position than Justices Ginsburg and Souter, who wanted to rule that we cannot detain any enemy combatants unless we can convict them under civilian court rules. The conservative positions were taken by Thomas (faithful to Quirin and to the president’s commander-in-chief powers) and Scalia (faithful to the Suspension Clause — a libertarian position that was joined by Justice Stevens).

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