Scalia the Civil Libertarian?

NY Times ^ | November 26, 2006 | SCOTT TUROW

[neverdem]

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 favorite. 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...

[TAdams8591]

Marking.

[CaptRon]

The conservative ideological majority on the U.S. Supreme Court that determined the 2000 election in favor of President Bush was being stolen by Al Gore's attempt to reount selected counties...

[KoRn]

ping

[KDD]

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.”
Justice Scalia

It may be that during wartime emergencies it is in the nature of the presidency to focus on accomplishing political and strategic ends without too much regard for any resulting breaches in the shield which the Constitution gives to civil liberties. Perhaps it may be best that the courts reserve their serious consideration of questions of civil liberties which arise during wartime until after the war is over. At any rate, these are questions worth thinking about not only in wartime but in peacetime as well.
These William H. Rehnquist remarks were delivered at the Indiana University School of Law--Bloomington on Monday, October 28, 1996.

I know that Rehnquist and Scalia were on the same page in 1996 concerning Executive power and War but the fact that the WOT looks like it could be a generational war that may well last decades, Scalia may be re-thinking how much protection the Bill of Rights affords during wartime...The Patriot Act disturbs many conservatives because of its weaking of the 4th Amendment constitutional protections. And no conservative can claim with a straight face that the Bush Administration has not garnered more power to the Executive then any President since Lincoln and FDR.

And that is not a good thing.

What will Democrats use all these new powers for.

Who might a democrat President such as Hilliary Clinton declare a terrorist or "enemy combatant" with all that such a declaration now means to an individuals civil liberties.

[sgtbono2002]

The NY Times cannot for the life of them get over the fact that George Bush wont the election in 200. They keep telling this lie in its various forms.

They cant go broke too soon to suit me.

[sgtbono2002]

Won the election in 2000. Sorry: I am not feeling well this morning.

[Democratshavenobrains]

The Times is just echoing what entire sites like DU and Kos say everyday.

[traviskicks]

Libertarian ping! To be added or removed from my ping list freepmail me or post a message here.

[JTN]

An interesting article, but...

In one of the first war-on-terror cases to reach the court, Rasul v. Bush, a majority agreed that the foreign detainees at Guantánamo 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.

This is nonsense. The Constitution's protections are intended for everyone under the jurisdiction of the United States government.

[ilovew]

Wouldn't that make everyone in the world under the jurisdiction of the U.S. government?

[JTN]

Wouldn't that make everyone in the world under the jurisdiction of the U.S. government?

My comment wasn't meant to apply directly to Rasul. My beef was with the "generally intended for only American citizens" portion of the statement. Read literally, this would mean that non-citizens in the United States have no rights.

[zeugma]

In one of the first war-on-terror cases to reach the court, Rasul v. Bush, a majority agreed that the foreign detainees at Guantánamo 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.

This is nonsense. The Constitution's protections are intended for everyone under the jurisdiction of the United States government.

Many, such as myself, would go even farther and note that the Constitution grants no rights. Those specific things mentioned in the Constitution acrue to you by virtue of your being born a human being. The Constitution recognises these pre-existing rights and merely states that the government may not justly infringe upon them.

[Oberon]

The Constitution recognises these pre-existing rights and merely states that the government may not justly infringe upon them.

That's my understanding of it, too.

[UnbelievingScumOnTheOtherSide]

I know that Rehnquist and Scalia were on the same page in 1996 concerning Executive power and War but the fact that the WOT looks like it could be a generational war that may well last decades, Scalia may be re-thinking how much protection the Bill of Rights affords during wartime...

Note the date on the tent 1905, 15 years after Wounded Knee ended our Hundred Years' War.
I think it was thought out some time ago.
What was good for Geronimo is good for Al-Qaeda.



"You go, Scalia!"

[NCSteve]

This article is bunk. That has nothing to do with its whining about the 2000 elections, a fact that will stop most of the bushbots around here dead in their tracks.

The author tries to generalize the justices on their personalities rather than their rulings. On the plus side, Scalia tends to be an originalist. On the minus side, he is not consistently so inclined. Scalia (and Alito and, to a lesser extent, Thomas) are adherents of the theory of the unitary executive. It should surprise no one that the double-digit-IQ types at NYT will utterly miss that one.

Despite what the Left claims, and what Democrats hyperbolize while one of their own doesn't occupy the White House, the unitary executive theory does not posit omnipotence. It seems to me that Scalia's rulings that favor the Bill of Rights over the executive are based on what he perceives to be the limits of executive power. While liberals tend to have blurred boundaries and subjective criteria, normal people tend to try to work within defined limits.

Would that we had a bench full of Scalias, Thomases, and Alitos, we would see something that more closely approaches the "balance" the founders had in mind. For now, though, judicial activism replaces constitutional interpretation and we are reduced to suffering through social tampering and experimentation.

[jdub]

I recently read part of the case where they scaled back the exclusionary rule. I was disappointed in the court on this issue.

[rob777]

"What will Democrats use all these new powers for."



I am not all that happy with the concentration of political power in any branch of government no matter which party wields it.

[gogeo]

Scott Turow...'nuff said.