Free to Dissent
Why Justice Scalia need not recuse himself from the Hamdan case.
by Daveed Gartenstein-Ross
The Weekly Standard
03/27/2006
WHEN IT HEARS ARGUMENTS IN Hamdan v. Rumsfeld this Tuesday, the Supreme Court will consider whether the Bush administration can try Guantanamo detainees in special military tribunals, or whether the detainees' cases have to be heard in federal court. In the run-up to the hearing, liberal proponents of federal judicial involvement declared their own war--on Justice Scalia's right to participate in the legal debate.
It began with a Newsweek report about a speech Scalia delivered on March 8 at the University of Freiburg in Switzerland. (Unfortunately, no transcript of his remarks has been published.) There, Justice Scalia allegedly told attendees that "[w]ar is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts." Asked if detainees captured on the field were entitled to relief under the Geneva Convention, he allegedly said, "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy."
Following these remarks, at least one organization litigating the Hamdan case has called on Scalia to recuse himself because he has already formulated an opinion on the matter. Liberal bloggers have begun to follow suit.
The stakes of a Scalia recusal are high: With Chief Justice Roberts already recused (because he heard the
case as an appellate-court judge), Justice Scalia would need to win the support of only three more justices to deadlock the Court at 4-4. Such a "tie" would leave intact the lower court's decision, that Guantanamo detainees have no enforceable rights in federal court.
Scalia has been through this before: In January 2003, he discussed the constitutionality of the pledge of allegiance's "under God" reference in a public speech. Nine months later, he had to recuse himself from hearing Michael Newdow's establishment clause challenge to the pledge.
At first blush, Justice Scalia's latest remarks seem like an even more compelling cause for recusal. While his remarks about the pledge occurred before the case was on the Supreme Court's docket, here the court was scheduled to hear arguments less than a month after the Freiburg speech. But a closer examination reveals that there is more than meets the eye: Scalia's remarks don't put forward anything different from the views he already articulated in two published opinions, a dissent in Rasul v. Bush and another dissent in Hamdi v. Rumsfeld. And that fact makes all the difference.
RASUL V. BUSH GAVE RISE to the Hamdan case by holding that the federal statute that provides habeas corpus relief to prisoners also applies to Guantanamo detainees. After Rasul, the Bush administration established military commissions designed to hear the detainees' cases. Now, in Hamdan, the Supreme Court is asked to determine whether these commissions satisfy the detainees' habeas rights, or whether they should be allowed to obtain relief in federal court.
Justice Scalia wrote a strong dissent in Rasul that was joined by Chief Justice Rehnquist and Justice Thomas. He disagreed with the court's reading of the federal statute at issue, concluding that the detainees had no right to bring such claims in federal court. He argued that the Court's reading of the statute--and its departure from the previously controlling case, Johnson v. Eisentrager--was dangerous in the context of the ongoing war on terror:
Departure from our rule of stare decisis in statutory
cases is always extraordinary; it ought to be unthinkable
when the departure has a potentially harmful effect upon
the Nation's conduct of a war. The Commander in Chief and
his subordinates had every reason to expect that the
internment of combatants at Guantanamo Bay would not have
the consequence of bringing the cumbersome machinery of
our domestic courts into military affairs. For this Court
to create such a monstrous scheme in time of war, and in
frustration of our military commanders' reliance upon
clearly stated prior law, is judicial adventurism of the
worst sort. I dissent.
Justice Scalia noted that throughout the twentieth century prisoners of war couldn't turn to U.S. courts for relief, and he quoted at length Eisentrager's explanation of the danger and impracticality inherent in extending judicial process to the field of combat:
To grant the writ to these prisoners might mean that our
army must transport them across the seas for hearing.
Such trials would hamper the war effort and bring aid and
comfort to the enemy. They would diminish the prestige of
our commanders, not only with enemies but with wavering
neutrals. It would be difficult to devise more effective
fettering of a field commander than to allow the very
enemies he is ordered to reduce to submission to call him
to account in his own civil courts and divert his efforts
and attention from the military offensive abroad to the
legal defensive at home. Nor is it unlikely that the
result of such enemy litigiousness would be conflict
between judicial and military opinion highly comforting
to enemies of the United States.
In short, Justice Scalia agreed with Eisentrager: Prisoners captured on the field of battle have no rights in federal courts, and their only recourse is available in military tribunals.
In another of the 2003 Guantanamo cases, Hamdi v. Rumsfeld, Justice Scalia argued in a dissent that prisoner Yaser Hamdi, a U.S. citizen, was entitled to judicial protection unavailable to foreign detainees. He stressed that this protection was afforded to Hamdi by nature of his citizenship, and that non-citizens did not enjoy these protections:
"[C]itizens have been charged and tried in Article III
courts for acts of war against the United States, even
when their noncitizen co-conspirators were not. For
example, two American citizens alleged to have
participated during World War I in a spying conspiracy on
behalf of Germany were tried in federal court. . . . A
German member of the same conspiracy was subjected to
military process."
This was not a mere aside: Justice Scalia's entire Hamdi opinion turned on the citizenship distinction.
BY ALL ACCOUNTS, Scalia's Freiburg speech did not go beyond the views he already expressed in his Rasul and Hamdi dissents. The applicable legal standard for recusal is supplied by 28 U.S.C. S 455(a), which states:
"Any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned." Scalia's critics argue that his Freiburg speech calls his impartiality into question. But to show that their questions are "reasonable," they face two tough questions: Since Justice Scalia's speech didn't go beyond his Rasul and Hamdi opinions, are those dissents already grounds for recusal? And if not, is their position simply that justices cannot speak publicly on matters where they have already expressed a view through published legal opinions?
It would, of course, be unprecedented to require a Supreme Court justice to recuse himself from deciding issues on which he has already expounded in past opinions. Justices routinely use their dissents to shape future court decisions. Chief Justice Rehnquist's lone dissents in the 1970s became the foundation of the federalism revival of the 1990s. And after Justice Stevens dissented in the 1986 Bowers v. Hardwick sodomy case, he had the pleasure of joining a majority opinion 17 years later that quoted his dissent approvingly: "Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here."
In what may be the starkest example of a justice pre-announcing his position, Justice Harry Blackmun announced in a 1994 dissent in a death-penalty case: "From this day forward, I no longer shall tinker with the machinery of death. . . . It is virtually self evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies." Justice Blackmun cited that dissent repeatedly in his subsequent opinions; he was never required to recuse himself from death-penalty petitions.
So a strongly-worded dissent in a matter likely to reappear before the Supreme Court shouldn't disqualify a justice from future cases. Such opinions are invaluable, as they offer a competing analysis that can affect subsequent court decisions, be they mere years (Justice Stevens's dissent in Bowers) or generations (Justice Harlan's dissent in the Plessy v. Ferguson segregation case) after the fact.
Nor should the fact that Justice Scalia put forward essentially the same views expressed in Rasul and Hamdi in a public speech change matters. Such a rule would have prohibited Chief Justice Rehnquist and Justices Stevens and Blackmun from publicly espousing their prior dissents for fear of future recusal. To ban such post-opinion statements, as opposed to pre-opinion statements, would upend the precarious balance our legal system achieves in the interests of promoting judicial impartiality on the one hand and steady, predictable rule of law on the other. Every time a judge hears a case, that judge brings to the bench an entire foundation of held legal principles, represented not only by past holdings of Court majorities, but also by the past concurrences and dissents of that judge. (Witness the extent to which justices cite their own past concurrences and dissents in subsequent opinions.) Our system does not demand that justices approach each case with a clean jurisprudential slate, and it has never demanded that a justice pretend that his past concurrences and dissents never happened.
Now more than ever, justices are engaging the public on legal issues. Justices Scalia and Breyer have published books and delivered speeches defending their respective judicial philosophies. These speeches and debates are invaluable to the nation's collective civic education. But to prohibit justices from publicly embracing the positions expressed in past concurrences and dissents would render their public speaking a nullity: Justices Scalia, Breyer and the rest would do the public much less favor by simply rehashing the state of the law as it is. We should foster this newfound judicial appreciation for public debate, not leave it to be "collateral damage" in the war over Guantanamo and the Constitution.
Daveed Gartenstein-Ross is a Washington, D.C.-based attorney and former D.C. Circuit Court of Appeals clerk who frequently writes about terrorism and legal issues for The Daily Standard.
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