Is Heller an Original Meaning Decision?
Many commentators, including my good friends
, have praised Justice Scalia’s opinion
Heller v. District of Columbia
as a sparkling example of original meaning originalism. After having read the opinion closely a number of times, I am not so sure.
I do not doubt that Scalia uses original meaning methodology at the beginning of the opinion. Rather, the crucial move that decides the case—and that separates the majority from the dissent—is not an argument from original meaning. Let me explain.
The Logic of Indefinite Dentention: How All the World's Militants Are Connected to the 9/11 Attacks
Can the president indefinitely detain someone who has no connection to al-Qaida and who has not engaged in any belligerent acts against the United States?
Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version on Monday.
Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush administration's detention policy-namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the president in the conflict against al-Qaida.
Within a week after the attacks of Sept. 11, Congress authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 , or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons ."
The administration argues that this Authorization for Use of Military Force authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.
Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al-Qaida or of the Taliban. Indeed, the Pentagon's Combatant Status Review Tribunal did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).
So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced weegur ). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to "oppression and torture" by the Chinese Government, including "harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas." In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone-not the United States-as his enemy.
In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and 17 other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.
In light of all this-and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks)-what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?
Find out at Balkinization .
A Logic Puzzle for Phil
An inventor has invented what he calls the M-Box. The M-Box is a lie detector and can be used to determine whether criminal suspects are lying or telling the truth. Unfortunately, the M-Box occasionally errs. Another inventor comes up with what he calls the C-Box. The C-Box is also a lie detector, and everyone understands that the C-Box could err as well. Suppose that someone makes a statement and the M-Box says "lie." Then a recording of that statement is played before the C-Box and the C-Box says "truth." Do we know that the M-Box is inaccurate because the C-Box disagrees with it?
Of course not. All we know is that the two contraptions disagree. We don't know which is correct in this instance, nor do we know which is more accurate in general. This is why Phil is wrong to say the D.C. Circuit opinion reversing the detention decision of a combatant status review tribunal proves that the tribunal is inferior to a court. All we learn from this incident is that the Military-Box and the Court-Box disagree.
Roe and Heller and the Limits of Partisan Entrenchment
Like all good conspiracy theorists, Jack posits that a complex outcome must be the result of either "dumb luck" or ingenious strategizing by an all-powerful and all-knowing single actor. Here, the complex outcome is that Republican presidents—despite having numerous chances to fill Supreme Court seats—have not been able to do what the GOP platform claims to want to do: overturn Roe . And the non-dumb-luck explanation for that is that the right wing is brilliant—carefully choosing justices with an eye to keeping the Roe issue just alive enough to retain credibility as the pro-life party without engendering a pro-choice backlash. But as the comments to Jack's latest post show, there's an alternative to the dumb-luck/conspiracy choice, and it's called ordinary politics. The Republican Party was for a long time—and perhaps still is—internally divided on the merits of Roe . Liberal Republican, pro-choice northeasterners are not hard to find even still. And so there has been infighting and intrigue within the party itself when it comes to judicial selection—and it's that internal fight that I think probably best accounts for the Souter nomination, not a sneaky desire by the president to pick someone who would uphold a right that he actually opposed because doing so would help the Republicans win elections. There was also Democratic Party resistance to some proposed Republican appointees—Bork being the most notable. And finally, there were other political factors, such as constituent outreach as in the case of appointing women (O'Connor). In short, a whole range of messy political factors—many of which involved the effective mobilization by pro-choice forces within both parties—explain why the effort to overturn Roe has (thus far) come up short. And so, it seems to me, the least likely explanation is that a vast right-wing conspiracy was afoot in which Republican presidents cleverly and consciously planned everything to come out just this way, appointing just enough justices who would oppose Roe in their dissents to make it look good while never quite going all the way. So, in rejecting Jack's theory, I am not casting my lot with dumb luck. I am just skeptical about a familiar left tendency: to attribute to the right wing a kind of omniscience and absolute control over political dynamics that just does not exist.
More on Minimialism
Emily , apart from what you think of Chief Justice Roberts, what do you think of the current role of the Supreme Court in American society as a whole?
It seems to me that the Supreme Court today has a smaller role in shaping the public policy agenda of the United States than it has had in recent memory. The court takes very few cases. For the most part, it takes cases only when lower courts disagree on the preexisting state of the law. And its decisions have tended to be really narrow: Even opinions that play out rhetorical battles have tended to have relatively small stakes. The court clearly has a role—no one disagrees with that—and of course there is disagreement as to what that role should be in hotly contested cases. But in general that role is a modest one, and the level of disagreement is small beans.
A Dozen Rosens for Me
Over at Slate 's "Breakfast Table," Walter Dellinger and Jack Goldsmith have credited the composition of the docket for explaining why, for a time this term, the court looked like it had gone moderate on us and forgotten its 5-4 habits. (Give Tom Goldstein points for predicting much of this back in September.) Now that the term is over, of course, we know that it ended in familiar 5-4 fashion in the big-bang cases (Gitmo, child rape, guns). We know from the stat masters at Scotusblog that 17 percent of cases split 5-4 this year—a lot less than last year, which is the outlier at 33 percent, and between somewhat and a bit less than the previous several terms. After Scotusblog factored in the rarity of 9-0 decisions, it called this term "the most divided in recent history."
That may not be how most of us will remember it, but in the NYT , Linda Greenhouse makes the same point in singling out as the term’s main theme the enduring influence of Justice Kennedy. Jeffrey Rosen, on the other hand, in TNR sees the term as a lesson in division minimized and writes another love letter to Chief Justice John Roberts in which he calls my much more skeptical judgment of Roberts "premature." I do give Roberts props for a vote this term—he was in the majority in the 7-2 decision that found a right to sue for retaliation in the Reconstruction-era law written to give former slaves equal rights to make contracts. In that case, Roberts went with precedent over textualist upheaval. But one vote doesn’t a uniter make; in the biggest rulings of the term, Roberts was on his usual side of the ideological split. My feeling about the chief justice continues to be that he’s powerful precisely because he’s smoother than Scalia and Thomas. He doesn’t alienate his colleagues with inflammatory rhetoric like Scalia or bulldoze precedent like Scalia and Thomas. He is more careful. That means he’ll need more time to bring about major shifts in the law, on some fronts, but his votes continue to suggest that he will move the court to the right when he can. I still don’t see the case for supporting Roberts’ nomination and opposing Alito’s, or simply for heralding Roberts as a bullet that liberals dodged, as Rosen puts it. He sees Roberts’ narrow opinion writing as "the only thing standing between them and a Court eager to roll back progressive reforms." Isn’t there more evidence, again this term, for that thing being Justice Kennedy?
Will Heller Implode?
Revolutionary ideologies always look good until they prevail; then their latent seeds of destruction sprout and conflagrate. Such is the case with originalism, and Heller provides an opportunity to see this process in action. To see why, imagine that, to the surprise of everyone, Clarence Thomas retires from the court next year and President Obama replaces him with a moderately liberal lawyer whom I will call X. In X's first term, another Second Amendment case reaches the Supreme Court. X reads the majority and dissenting opinions of Heller and decides that Justice Stevens' dissent makes the better originalist case. He writes a new majority opinion that adopts Stevens' dissent and overturns Heller .
What is the Heller -supporting originalist to say about this behavior? He can argue until blue in his face that Scalia was right and Stevens was wrong, but Stevens' account was plausible enough to obtain the support of three other justices and various knowledgeable commentators. What he can't plausibly argue is that X should have respected the Heller precedent. After all, if originalism means anything, it must be that precedents should be given no, or little, weight. This idea is the source of originalism's power and radical nature, but it also ensures that originalist opinions will, as precedents themselves, be short-lived. And because the constitutional text is ambiguous and the contemporary setting is remote from our understanding, it will always be as easy for liberals as for conservatives to generate whatever results they want in the originalist idiom, which guarantees that the triumph of originalism, if that is what Heller represents, will have no particular political implications for American government that cannot be traced to the ideological leanings of whoever happens to sit on the Supreme Court. Policy and political judgments will continue as before muffled underneath a new blanket of rhetoric. That faint sound you hear is laughter echoing in the tombs of the legal realists.
Justice Scalia, aware of this problem, calls himself a "faint-hearted" originalist and acknowledges that certain precedents must be obeyed. But which? Why should his Heller opinion constrain a future liberal justice who thinks that its originalist interpretation is wrong? If the answer is that this justice should follow it just because Scalia was there first, then it is inevitable that, as precedents reflecting good-faith but erroneous interpretations of original sources or bad-faith manipulations of them pile up, doctrine will eventually diverge from origin, and originalism will become moot. If the answer is that he shouldn't, then precedents will last only as long as the current majority on the Supreme Court, and the Heller precedent, too. Either way, originalism cannot last.
Shareholders You Can Do Without
Justice Samuel Alito, for example, who blew a cool $500 million for his fellow Exxon shareholders — at least, if conventional wisdom is correct that Alito would have broken a 4-4 tie and deprived the Exxon plaintiffs of punitive damages if he had not recused himself because of his Exxon stock holdings. You would think there would be room for a bargain here. Exxon should have paid Alito a small sum of money — say, $1 million — to sell his stock, so that Alito could have cast a vote for Exxon without violating the code of judicial ethics. After all, Exxon would not be paying Alito to vote for Exxon; it would be paying Alito to cast an impartial vote after shedding his Exxon stock and thus his pecuniary interest in an Exxon victory. The plaintiffs would lose their punitive damages, of course, but they cannot reasonably argue that their case be heard by eight impartial justices rather than nine. Aside from the plaintiffs, there would be gains all around. Alito's paltry salary would be supplemented, Exxon's shareholders would be up $499 million, and the public's interest in the impartial adjudication of legal disputes by the nation's highest court would be served.
Roe and Partisan Entrenchment
, far be it from me to suggest that elections don't matter a great deal for constitutional development. That they do is the central claim of Sandy Levinson's and my
theory of partisan entrenchment
. It's nice to know we have a fan. But there is still the question of why
Roe v. Wade
survived in the face of a series of Republican Supreme Court appointments, a question that, at first glance, the partisan entrenchment theory would seem not to answer very well. Since I'm one of the advocates of the theory, it has fallen to me to deal with the problem.
Your explanation to this quandary appears to be just dumb luck. Well, dumb luck does explain some things, but I would prefer to push the question a little further. That is because Roe is not just any decision that happened to survive. It's one of the most important decisions in contemporary American politics, and the Republican Party's platform has, since 1980, been devoted to overturning it.
So, if Roe has survived five Republican appointments since the failure of the Bork nomination, it's worth asking whether the cause is just dumb luck. Are the Republicans just that incompetent on this key issue?
Roe, Heller, Politics, and Jack
Jack — You really should not be required to repeat yourself, and so I apoligize for making you go through it all again. But at last, I get it! It's not the justices who are acting strategically, only the presidents who appoints them. Once they appoint them, justices do as they do. Which is why Reagan appointed Kennedy — he knew he passed the reverse litmus test on Roe . The theory is working great. After all, a nonstratgegic Republican president would have appointed someone like Scalia. Or, even dumber, Bork! Oh, wait ... OK, maybe Reagan's not such a strategic figure. It's not like Bush pere would have appointed someone who thinks Roe should be overruled, like, say, Clarence Thomas. Oh, wait, again ...
It's a problem for a theory, I think, when neither of the actors in a position to act in accord with it (that is, the presidents or the justices) seem to be ... reliably acting in accord with it. And while the Roe right in some form thus far survives, some think that has more to do with the Senate refusing to do what the prez wanted (see Bork above) than with the prez faking everybody out.
But why should we care about this debate? One reason might be that it would warn supporters of the Roe right from taking false comfort in the political-calculation theory's prediction that it will survive a long line of Republican administrations — just as it would encourage Roe 's opponents to take heart!
In short, it's my contention that elections matter more for constitutional development than, paradoxically, for the super-sophisticated theory of electoral-jurisprudence theory (with its assumption of canny presidents — and maybe even justices — always seeking out some clever equilibrium) indicates.