As most of you have heard me bellowing for the past few months, this year's term of the Supreme Court is in many respects no less momentous than last year's. I am a big fan of US citizens learning to read the opinions of the highest court in the land, so the links to the opinions (pdf) follow below. When time permits, I will offer some commentary on several of the end-game cases, including the "enemy combatant" and energy task force cases. But to entice you - as if the actual Court judgments and headlines weren't enough! - I wanted to point out a few line-ups of the Court's vote that one is as likely to read as "Justice Scalia, with whom Justice Brennan joins, dissenting." The very unlikely groupings are an indication both of the significance of the issues involved as well as the strains the Court took come up with sufficient votes.
Blakely v. Washington, No. 02-1632, 542 US __ (2004) (5-4)
Death penalty
Opinion: SCALIA, joined by STEVENS, SOUTER, THOMAS, and GINSBURG [!!!].
Dissent: O'CONNOR, joined by BREYER and (in part) REHNQUIST and KENNEDY.
Dissent: KENNEDY, joined by BREYER.
Dissent: BREYER, joined by O'CONNOR.
Hamdi v. Rumsfeld, No. 03-6696, 542 US __ (2004) (6-3)
Enemy combatants
Plurality: O’CONNOR, joined by REHNQUIST, KENNEDY, and BREYER.
Concurrence: SOUTER, joined by GINSBURG.
Dissent: SCALIA, joined by STEVENS [!!!].
Dissent: THOMAS.
Rumsfeld v. Padilla, No. 03-1027, 542 US __ (2004) (5-4)
Enemy combatants
Rasul v. Bush, No. 03-334, 542 US __ (2004) (6-3)
Enemy combtants
Schriro v. Summerlin, No. 03-526, 542 US __ (2004) (5-4)
Death penalty
Missouri v. Seibert, No. 02-1371, 542 US __ (2004) (5-4)
Miranda warnings
United States v. Patane, No. 02-1183, 542 US __ (2004) (5-4)
Miranda warnings
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3 comments:
Jeremy,
I haven't read the cases for which you give the voting line-ups here, but even without reading them I can explain why the line-ups came out the way that they did.
We're used to seeing ideological divisions on the court, but that is not the only kind of division among the justices. Just as there is a liberal-conservative axis on the court, with Stevens-Souter-Breyer-Ginsburg on one end, Scalia-Rehnquist-Thomas on the other, and O'Connor-Kennedy center-right, so there is also a pragmatist-principlist axis on the court. O'Connor is the chief pragmatist, preferring narrow, case-by-case decisions. Scalia is the chief proponent of broad, rule-establishing decisions. As you can see, the other pragmatists, along with O'Connor are Kennedy, Rehnquist, and Breyer; while Scalia is joined by Thomas and Stevens, and also Ginsburg and Souter, in preferring broad, general rules.
The theory behind the pragmatist, narrow, case-by-case approach is that it allows for the greatest amount of refinement in the law. As Cass Sunstein says, in a country in which people have strong disagreements about fundamental, general principles, narrow decisions avoid establishing broad, general rules that might not work out quite the way one might expect in laying down the rule.
The theory behind the rule-based approach is that it makes the law predictable and simple to understand. It also makes the most effective use of the Supreme Court's limited attention. That is, the court can only take a very small percentage of all of the cases that come up on appeal, and if every ruling is a narrow, pragmatist one, then the court cannot provide much guidance to the lower courts; its attention will always be spread to thin. Narrow, highly refined decisions also make it difficult for ordinary people to understand the law and to plan their affairs accordingly. Broad, general rules, even if they sometimes seem crude and over- or under-inclusive, at least are comprehensible to ordinary people, and people can reasonably predict what the legal consequences of their actions will be. On the other hand, when courts make narrow decisions, they (intentionally) leave ambiguity as to how they will decide a slightly different case, and therefore people have to act without certainty as to what the legal consequences of their actions will be.
As you might be able to tell from my description of the two philosophies, I'm very much on the side of the general rule crowd, against the pragmatists, which, given my ideological perspective, places me almost always in total agreement with Justice Scalia.
By the way, I'd like to make a point about enemy combatant detentions: I admit that it sounds terrible that American citizens can be captured on U.S. sovereign territory and held indefinitely without trial, but before we reject this, we need to understand the alternatives.
I saw a floor debate in the House of Representatives the other day, in which a Democrat was arguing that terrorist suspects should be prosecuted under the criminal law. Republicans rightly pointed out, however, that much of the evidence against terrorist suspects is gained through intelligence methods that are not admissible in court; or, alternatively, prosecutors would be put in the position of having to reveal in open court sources and methods of intelligence, meaning that paid CIA informants would have to be brought into court to testify, meaning that these intelligence assets will be useless in the future and likely assassinated after testifying—and therefore people will not want to become intelligence assets, knowing that they will be forced to testify in court. So human intelligence will be seriously compromised, and and so will technical methods, once they are made part of the official court records. And, of course, there is also the problem of jurors subject to terrorist reprisals.
Simply put, if terrorists must be put on trial, then there will be cases in which sources and methods of intelligence will be compromised, making the public more subject to terrorist attacks. Obviously, there will be cases in which terrorists can be tried without compromising intelligence sources, but there will also be many cases in which this cannot be done.
The result: Politicians will not allow terrorists to go free, nor will they serve up sources and methods of intelligence in open court, so they will do one of two things: they will hold suspects secretly, hiding it from the media, rather than informing the media as they did with Pedilla, or, alternatively—and much more likely—they will simply kill terrorist suspects without any detention or trial at all.
Civil libertarians should understand that they will not get trials for terrorist suspects when a trial would compromise intelligence sources. If they were to get the courts to declare this as a requirement, the result would almost certainly be secretive, lawless executions of terrorist suspects.
As I understand it, however, the courts are not requiring trials, only habeas corpus hearings, which, I suppose, will formally designate individuals as enemy combatants. This sounds like an excellent solution.
Alternatively, if we were smart, we would amend the U.S. Constitution to allow for secret trials with judges only (no juries), as the French do.
I appreciate John's comment, and found it trenchant and well-put. I am, of course, fully aware of the multiple layers (ie, political, judicial, jurisprudential) of "liberal" and "conservative" on the Court, though I'm not quite sure that explains all of the line-ups. I'm not so certain, for instance, that Rehnquist so neatly falls in the pragmatist line-up (or else he, like the other pragmatists, would play a more significant swing-vote role vis-a-vis the Court's (political) liberal-conservative split. Nor am I so certain that Souter is as non-pragmatic as claimed.
More pressing to me, it seems, is not the question of which dimension more properly explains the strange line-ups, but rather the strange interactions (clashes, no?) of several "liberal"-"conservative" schemata in this year's term, much more pronounced than any of the past few years.
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