It is important to recognize that Justice Scalia’s Hamdi opinion is also strongly critical of the Court’s plurality opinion (written by Justice O’Connor) — and on grounds that I suspect Mark would embrace.
It should not be thought, however, that the plurality’s evisceration of the Suspension [of Habeas Corpus] Clause augments, principlally, the power of Congress. As usual, the major effect of the constitutional improvisation is to inrease the power of the Court. Having found a congressional authorization where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. . . . .
There is a certain harmony of approach in the plurality’s making up for Congress’s failure to invoke the Suspension Clause and its making up for the Executive’s failure to apply what it says are needed procedures–an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it ias its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions. Has the Legislature failed to suspend the writ in the current dire emeregency? Well, we will remedy that failure by prescribing reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts’ modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.