Daily Standard: Free to Dissent

By Daveed Gartenstein-Ross

Tomorrow, the Supreme Court will hear arguments in the Hamdan v. Rumsfeld case. This will be a significant case for determining the role of federal courts in the global war on terror, as 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. But the current controversy surrounding this case is whether Justice Scalia should recuse himself because of remarks he made in a March 8 speech at the University of Freiburg in Switzerland.

In that speech, 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 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." While these remarks appear to present a strong cace for recusal at first blush, they are far less damning when one realizes that his comments do not go beyond the views already articulated in two published opinions, a dissent in Rasul v. Bush and another in Hamdi v. Rumsfeld. I weigh in on the recusal today in the Daily Standard. An excerpt:

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.

Read the whole article here.

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