Probably the most important thing I learned in law school (I can say “learned” in the past tense as I’m now only 50 days from graduation) is that most legal texts (especially the Constitution) are too indeterminate to constrain judicial discretion. (My Competing Fatwas post illustrated this point.)
And probably the second most important thing I learned in law school, a corollary to the first, is that because legal texts often serve as no constraint on judicial discretion, any results a judge asserts as justified by the application of law are no more than that judge’s own personal preferences just dressed up, real fancy, in the guise of law. And any judge who claims that he is simply mechanically and dispassionately applying the law to the facts of a case is either, at best, lying to himself or, at worst, lying to you.
Consider Justice Scalia, whose judicial philosophy can be roughly reduced to the following: (1) Most legal text (including constitutinal text) is sufficiently determinate to constrain the discretion of judges and (2) where the text is not sufficiently determinate, applying the original intent of that text’s drafters (Madison, et al. for the Constitution) to interpret the text resolves this indeterminacy, and thus serves as a second constraint of judicial discretion.
Of course, Scalia’s “originalism” is just another real fancy guise with which to dress up personal perferences as “law”. Proof?
The issue before the court is the legality of President Bush’s military tribunals. The two key war-on-terror cases of 2004—Hamdi v. Rumsfeld and Rasul v. Bush—established that the administration could detain enemy combatants. But these combatants would nevertheless be entitled to some neutral adjudicatory process, the contours of which the justices left to be determined. The question for the court is whether the military tribunals established by the president by military order in 2001 meet the justices’ standard for neutral and adjudicatory.
If you recall from way back, I helped in research for parts of an amicus brief, on behalf of the Guantanemo detainees, when Hamdan was tried in the district court. We won there, but that decision was reversed in the federal appellate D.C. Circuit Court by a panel that included now-Cheif Justice Roberts. After losing in the appellate court, Prof. Katyal sought and was granted review by the Supreme Court. And here we are.
Now, at least two courts, and a group of very smart jurists, have disagreed about the legal merits of the Hamdan case, which to me is pretty solid evidence that the relevant legal text is indeterminate on the matter.
But not for Justice Scalia!
On March 8, three weeks before Hamdan was argued before the Supreme Court, Justice Scalia was asked what he thought about the proposition that Gauntanemo detainees have rights under the U.S. Constitution or international conventions, a principal issue in Hamdan. Scalia replied: ““Give me a break…. 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.”
It doesn’t take a lawyer, of course, to figure out this is not a legal argument. Scalia’s decision regarding the rights of the Gauntanemo detainees stems not from his self-proclaimed belief in originalism or some dispassionate application of some legal text. Instead, he’s made his decision based on personal circumstances and emotions. Now, when he sits down to write his (hopefully dissenting) opinion, he probably will be a little more tactful. He won’t mention his son, but will instead talk about the President’s War Powers (or something) from a textualist or originalist perspective. It’ll all sound so presausive. But make no mistake: originalism is just another way to dress up personal preferences and give them the force of law.