Pubdate: Sun, 26 Nov 2006
Source: New York Times Magazine (NY)
Copyright: 2006 The New York Times Company
Author: Scott Turow
Note: Scott Turow is the author most recently of the novella 
"Limitations," which first appeared in a different form as a serial 
in the magazine.
Bookmark: (Opinion)
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The conservative ideological majority on the U.S. Supreme Court that
determined the 2000 election in favor of President Bush should have
grown stronger when Bush chose Justice Samuel Alito to replace the
moderate Sandra Day O'Connor. Yet in carrying out its first priority,
the war on terror, the White House has encountered unwelcome
resistance from the court.

Objections to Bush's sweeping view of executive power have come not
only from liberals and centrists, like Justice Anthony Kennedy but,
more remarkably, from Justice Antonin Scalia, who may end up playing a
pivotal role in future war-on-terror cases.

Scalia has long been regarded as an administration

Bush suggested during the 2000 campaign that Scalia was his idea of a
model justice.

In the court's Bush v. Gore decision, which brought that campaign to
an end, Scalia ventured the opaque claim that candidate Bush would
experience "irreparable harm" if the recount continued in Florida. Not
long after, the justice's son was appointed by the president to a top
position in the Labor Department. In January 2004, Scalia took a free
ride on Vice President Cheney's plane to go duck hunting with him;
later he refused to step aside in a major case involving Cheney.

Even beyond these affiliations, Justice Scalia's flamethrowing
rhetoric and his hostility to whole chapters of 20th-century
jurisprudence have made him a conservative icon and a favorite face on
liberal dart boards.

The justice has declared that the Constitution not only creates no
right to abortion but does not even protect private adult sexual
conduct, blasting the court's 2003 decision to strike down a Texas
sodomy law as "largely sign[ing] on to the so-called homosexual
agenda." He has scaled back the exclusionary rule, which bars evidence
obtained by unlawful police searches, and made it clear that he would
like to do away with Miranda warnings.

Less noted, however, is the fact that Justice Scalia, especially in
the last decade, has frequently taken an expansive view of the Bill of
Rights, thus supporting defendants in criminal cases.

Scalia is one of the intellectual godfathers of a strand of Supreme
Court decisions, crystallized by Apprendi v. New Jersey, that
revolutionized sentencing laws. Following a strict interpretation of
the Fifth Amendment's guarantee of due process of law and the Sixth
Amendment's right to trial by jury, Scalia has insisted that any fact
used to extend punishment beyond normal statutory limits must be
specified and proved to a jury beyond a reasonable doubt.

Despite his fevered support for capital punishment, Scalia also joined
a court majority in holding that the Constitution requires a death
sentence to be decided by a jury, rather than by a judge, effectively
setting aside every capital sentence still on direct appeal in five

Nor are Scalia's pro-rights decisions limited to one arcane area. In
Kyllo v. U.S. (2001), Justice Scalia, writing for the court, deemed
police use of heat-seeking technology to detect whether marijuana was
being grown inside a house a violation of the Fourth Amendment's
prohibition on unreasonable searches.

In a 2004 opinion, Scalia spoke for a court majority in finding
unconstitutional the widespread practice of using recordings or
prepared statements to the police as a substitute for the testimony of
unavailable witnesses.

And last term, supported by the court's four more liberal justices,
Scalia held that a defendant wrongly deprived of the lawyer of his
choice gets a new trial, no matter how overwhelming the evidence of
his guilt.

Justice Scalia is led to these seemingly divergent positions by his
unyielding adherence to a school of constitutional interpretation
called originalism. To Scalia, the Bill of Rights means exactly what
it did in 1791, no more, no less. The needs of an evolving society, he
says, should be addressed by legislation rather than the courts.

In all of this, Scalia is first and foremost a legal formalist --
meaning that to him, the rules are the rules.

He did not sign on to the Apprendi cases out of any special sympathy
for criminal defendants -- indeed, he once wrote an opinion refusing
to uphold an acquittal on the grounds that the defendant's motion for
acquittal was filed one day too late. Rather, he was motivated by the
assumption that, as he put it in the capital-punishment case, "the
right of trial by jury is in perilous decline." In other words, over
the years the right had come to be interpreted more narrowly than in

In adjudicating the war on terror, Scalia has come down strongly on
behalf of the administration and its prisoners in a number of cases.
The extensive powers claimed by the Bush administration would seem to
pose a problem for originalists, because the Bill of Rights was
indubitably added to the Constitution to keep the new American
executive from repeating the monarchal abuses of King George. Yet in a
speech in suburban Cleveland in March 2003, just before the invasion
of Iraq (where one of his sons would serve), Justice Scalia told his
audience that "most of the rights that you enjoy go way beyond what
the Constitution requires" and predicted that in war time "the
protections will be ratcheted right down to the constitutional
minimum." In one of the first war-on-terror cases to reach the court,
Rasul v. Bush, a majority agreed that the foreign detainees at
Guantanamo had a right to file habeas corpus petitions.

Scalia strongly dissented, as one might have expected given the fact
that the Constitution's protections are generally intended for only
American citizens.

It thus verged on the breathtaking when Justice Scalia wrote in Hamdi
v. Rumsfeld: "Many think it not only inevitable but entirely proper
that liberty give way to security in times of national crisis. ...
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."

Hamdi, an American citizen, was supposedly captured among Taliban
forces in Afghanistan. Four justices thought that the Congressional
resolution passed immediately after 9/11, authorizing the use of force
against Al Qaeda, permitted the president to detain Hamdi as an enemy

A majority ruled, however, that Hamdi could not be held indefinitely
simply on the president's say-so and was entitled to a meaningful hearing.

Justice Scalia would not even concede the first point.

Instead, he declared Congress has not given the president the power to
hold any American, even one who has taken up arms against his country,
as an enemy combatant and instead must press criminal charges or let
him go.

Now the looming question is where Scalia will settle as future
war-on-terror cases come before the court, and whether his unique
jurisprudence will accord him a leading role. The court's centrists,
most notably Justices Kennedy and Breyer, are inclined to apply
nuanced balancing tests.

Weighing, for example, the need to hold battlefield captives like
Hamdi against the reality that such a detention could last most of the
detainee's lifetime, both justices voted to create a right to a
hearing for citizen-combatants. Yet their war-on-terror decisions have
been so factbound that they offer little future guidance on the
meaning of the rights involved.

For instance, what happens when a citizen who is a supposed enemy
combatant is captured in this country rather than on the battlefield?
The other conservatives on the court -- Justice Thomas and, in their
limited times, Justices Alito and Roberts -- have shown an inclination
to defer blankly to executive power.

Scalia's originalism, too, tends to view executive power expansively,
but only when it is applied to the many areas beyond the narrow
preserves created by the Bill of Rights. As the Apprendi cases
demonstrate, Scalia is more like the court's liberal members in seeing
the Bill of Rights as a constitutional trump when it collides with
government power.

Apparently unsure about what the future holds, the administration
recently has been trying to sidestep the Supreme Court altogether. It
persuaded Congress to remove the habeas corpus rights the court had
previously granted foreign detainees at Guantanamo. The White House
also wants to rewrite the wiretapping laws to bolster the president's
assertions that he had the constitutional power to wiretap certain
calls without a warrant.

The president has asked the lame-duck Republican Congress to push
through the change, but the newly emboldened Senate Democrats say they
will block it. It appears most likely that when the wiretapping
program inevitably reaches the court, the justices will have to weigh
the president's claim of inherent authority against the statute in
place when the program began. The statute explicitly says its warrant
procedure is "the exclusive means" to wiretap calls to or from the
U.S. for national security reasons.

Scalia has seldom been a consensus builder on the court, preferring to
stick with his own views rather than troll for votes.

But his occasional alliance with the court's more liberal justices
could be struck again in future terror cases.

The result would be an unequivocal declaration that executive power
must yield to constitutional liberties, even when the nation is on the
prolonged war footing we seem to have adopted.
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MAP posted-by: Richard Lake