Divide and Rule

by Jeffrey Rosen | July 26, 2004

At the end of June, the Supreme Court issued three decisions repudiating the Bush administration's demand that the courts stay out of the war on terrorism. The decisions were simultaneously lauded as an example of judicial restraint and excoriated as the activism of an imperial judiciary. Cass R. Sunstein of the University of Chicago (and a New Republic contributing editor) praised the Court for deciding the Guantanamo Bay case in the "narrowest possible fashion," while Justice Antonin Scalia criticized the Court for indulging in "judicial adventurism of the worst sort."

In fact, the three terrorism decisions are neither as restrained as Sunstein suggests nor as activist as Scalia fears. Instead, they represent the latest skirmish in a jurisprudential battle that transcends political ideology: the pragmatists versus the legalists. The pragmatists generally defer to the president and Congress, interpreting laws broadly to give the government flexibility to respond to important national problems. The legalists prefer to interpret laws and the Constitution strictly and are perfectly happy to rule against the president or Congress without worrying about the practical consequences.

The pragmatists think the Court's job is to make the government run smoothly; the legalists insist on enforcing constitutional limitations even if the result creates confusion and chaos. The shifting fault lines between these two groups of justices are increasingly defining the Rehnquist Court. The pragmatists won their most notable victory in Hamdi v. Rumsfeld, in which the four most pragmatic justices--Sandra Day O'Connor, William Rehnquist, Stephen Breyer, and Anthony Kennedy--concluded that the detention of an American citizen seized in Afghanistan was permitted by the congressional resolution authorizing the president to use force against the perpetrators of the September 11 attacks. In fact, the language of the resolution was ambiguous, but the pragmatists read it in a way that avoided a potential constitutional conflict with the White House over the president's powers as commander-in-chief.

But, while the Court's pragmatic plurality concluded that Congress had authorized the president's detention of an American citizen captured in Afghanistan, it went on to hold that Yaser Hamdi was entitled to access to lawyers and independent courts to review the legitimacy of his designation as an enemy combatant. The pragmatists then ordered lower courts to balance Hamdi's interest in liberty against the national interest in security. They said judges should not only provide Hamdi with a lawyer but also craft novel procedures (accepting hearsay evidence, for example, or adopting a rebuttable presumption in favor of the government) that would ensure him a fair opportunity to contest his status without hampering the executive's interest in prosecuting the war on terrorism.

In one of his most surprising and impressive opinions, Scalia, the leader of the conservative legalists, criticized the pragmatic plurality for creating criminal procedure by judicial fiat. Scalia lambasted the Court's "Mr. Fix-it Mentality," in which the pragmatic justices made up procedures that would ensure the constitutionality of the detentions, rather than insisting that Congress hadn't authorized them and forcing the executive to go back to the drawing board. Unless Congress has suspended habeas corpus, Scalia insisted legalistically, any American citizen must be tried as a criminal or released. "By repeatedly doing what it thinks the political branches ought to do, [the Court] encourages their lassitude and saps the vitality of government by the people," Scalia concluded.

Happily, this political lassitude should end next term, when the Court may confront, for the second time, the case of Jose Padilla, the American citizen seized at O'Hare Airport and detained as a suspect in a dirty-bomb plot. The Court delayed a final decision on his case, arguing that his suit should be filed again in South Carolina, where he is now being held in a military brig. But Justice John Paul Stevens's legalist dissent, joined by Ruth Bader Ginsburg, David Souter, and Breyer (a pragmatist who is often persuaded to side with the legalists), made clear that these four justices believe that the Non Detention Act, passed by Congress in 1971 to avoid a reprise of the Japanese internment cases, "does not authorize ... the protracted, incommunicado detention of American citizens arrested in the United States." When these four votes are combined with Scalia's dissenting opinion in Hamdi, there appear to be five votes next year ordering that Padilla must be released or charged as an ordinary criminal.

This conflict between pragmatists and legalists was at the center of other important battles on the Court this term. Consider Blakely v. Washington, decided on June 24, in which the Court, by a 5-4 vote, struck down Washington state's sentencing guidelines, holding that the Sixth Amendment right to a jury trial doesn't allow judges to make factual findings that increase a sentence beyond the ordinary range for the crime. As Benjamin Wittes of The Washington Post pointed out to me, here the dissenters were the four pragmatists who made up a plurality in Hamdi--O'Connor, Rehnquist, Kennedy, and Breyer--while the majority was made up of the five legalists who dissented from parts of Hamdi-- Stevens, Ginsburg, Souter, Scalia, and Clarence Thomas. Blakely, which has wreaked havoc by throwing the federal sentencing guidelines into question, reminds us of the extent to which the Court's legalists are willing to disrupt existing federal criminal procedure if they believe the Constitution requires it.

This isn't the first time the legalists and the pragmatists have clashed over their interpretation of the Sixth Amendment right to jury trial. The five legalistic justices of the Blakely majority voted together for the first time in 1999, when they questioned a federal carjacking law that allowed sentences to be enhanced without proving each element of the crime beyond reasonable doubt. The following year, in the landmark Apprendi v. New Jersey decision, they continued their assault on state and federal sentencing guidelines by holding that criminal defendants are entitled to have juries determine every element in a crime beyond reasonable doubt. The legalists wanted to interpret the Sixth Amendment strictly; the pragmatist dissenters would have given the government more flexibility to delegate decisions about sentencing to judges rather than juries.

The 6-3 Guantanamo case, Rasul v. Bush, represents an uneasy alliance between the pragmatists and the legalists. In his opinion for the Court, Stevens suggested legalistically that any citizen or alien held by American forces abroad might be able to challenge his or her detention in any federal district court. It's hard to tell from Stevens's opinion whether it applies only to Guantanamo, because of its unique circumstances, or whether its sweeping language about judicial oversight of executive detentions could apply anywhere in the world. But Scalia's dissent predicted a lawyer's feeding frenzy as ambulance chasers troll for clients on the battlefield.

It was, in fact, a close question whether Guantanamo Bay counted as sovereign U.S. territory according to the terms of the U.S. lease with Cuba. As Kennedy suggested pragmatically in a concurring opinion, the Court could merely have held that "Guantanamo Bay is in every practical respect a United States territory" without opening up every foreign military base to review by U.S. courts. But Stevens's opinion, in the end, won over the pragmatists--Kennedy, O'Connor, and Breyer--by leaving the White House flexibility to make judgments about what kind of hearings are necessary and how they should be conducted.

On July 7, the White House interpreted the opinion to allow a military process, announcing that detainees could appear before a newly created panel of three military officers and would be provided with "personal representatives," but not lawyers, to advise them. Administration critics have already written to Defense Secretary Donald Rumsfeld, arguing that the administration, by denying access to lawyers, has eviscerated the Court's decision in Rasul. "The right to habeas corpus has always included the right to legal assistance," the Center for Constitutional Rights wrote to Rumsfeld. The White House's response illustrates that the pragmatists on the Court can't save the president from his worst impulses; they can merely give him a second chance.

The three terrorism decisions, in short, were neither minimalist nor outrageously activist. They were an expression of pragmatism, offered by shifting majorities of justices who were unwilling to accept the executive's claims of unreviewable authority but who wanted to give the president sufficient flexibility to descend from the imperious perch onto which he had climbed. Unfortunately for the White House, the Court's patience may soon run out. And, when that happens, five legalistic justices seem poised to rule that the president lacks authority to detain American citizens indefinitely on American soil. That, in the end, would be the best thing the Court could do for civil liberties, for it would force the president at last to go to Congress and ask it to approve the procedures for terrorist detentions that neither judges nor presidents should invent on their own.

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This article originally ran in the July 26, 2004, issue of the magazine.

Source URL: http://www.newrepublic.com//article/divide-and-rule-0