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A Supreme Court Dialogue

the breakfast table
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from: Walter Dellinger
to: Dahlia Lithwick

Will the Court Limit Presidential Authority?

Posted Thursday, June 24, 2004, at 12:04 PM ET

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Dear Dahlia,

I looked back last night on the Slate archives at our very first "Breakfast Table" exchanges from two years ago. My first posting from Sutton's Drug Store was actually pretty funny. This year, for whatever reason, I just don't feel humorous. Maybe the Supreme Court will cheer me up.

You are right about the importance of the cases soon to come. "Historic" is an overused term in Supreme Court commentary. We hear it instantly applied to far more high court opinions than will ever make it into college textbooks. But this time the word seems right. The war on terror has come to the Supreme Court, and the court's rulings on how it can be conducted could go a long way toward defining our national character. Liberty and security, the authority of the president and the Congress, the role of the court itself, are all at issue in the Padilla, Hamdi, and Guantanamo cases.

A few weeks after 9/11, I was asked at a panel discussion at Duke how I thought the Supreme Court would respond to proposals to curtail individual rights as part of the response to terrorism. I responded that the proposals would present two different kinds of questions. One was whether the balance between liberty and security should be adjusted in the direction of security. The second was which institution of government would have the final say about where that balance was placed. I thought the administration would fare better on the first type of question than the second: Although the court would be willing to see the balance move in the direction of security, the justices are not about to let any institution other than the court have the final say about where those lines should be drawn.

A central theme of the Rehnquist Court—perhaps the central theme—has been the primacy of the current Supreme Court itself. The signature case is Dickerson, the case that decided whether Congress could overrule Miranda. Chief Justice Rehnquist wrote the opinion smacking down Congress' attempt to make Rehnquist's own dissenting view the law. This court really is
supreme. The idea that people can be held by U.S. authority without any access to courts or lawyers will be a hard sell to these judges.

As we await the court's decisions in these terrorism cases, I am struck by the extraordinary degree to which the news consuming Washington could be resonating with the court's deliberations. You are right about all sides making "supplemental filings" with the court since the arguments in these cases. The question is whether all the news about the administration's
legal defenses of harsh treatment of detainees is having an influence on how the near-final opinions are written. It's hard to say. The justices know they are writing for the ages and are unlikely to be swayed by the news of the day.

Still, one wonders if we will see indications in the opinions the court hands down that the justices have read the most startling memo—the Aug. 1, 2002, Office of Legal Counsel opinion concerning the limits of legal restrictions on torture. The press says it has been "repudiated" by the administration but I'm not sure what that means, since the disavowal is from "anonymous senior officials," is nonspecific, and comes nearly two years after it was signed and after it has been used as a basis for other legal memoranda that have not been rejected. The assertion of a president's power to authorize disregard for criminal laws specifically designed to limit government power would be most upsetting to the court. In the memo's view, there is nothing Congress could do to "interfere with the President's conduct of the interrogation of enemy combatants."

Two of the justices, Rehnquist and Scalia, headed the Office of Legal Counsel, as did I. All of us who have been in that position from both parties have argued for a strong version of presidential authority and understand the particularly stressful circumstances under which these memos were written. But even so, the sweeping assertions seen this week will leave virtually all of the justices uneasy with claims of executive autonomy to make detention determinations without judicial review.

We haven't heard such claims of presidential power to be above the law since President Nixon's sweeping assertion made in his post-presidency interview with David Frost. Dug up recently by Professor Neal Katyal is the following memorable exchange:

Mr. David Frost: So what in a sense you're saying is that there are certain situations ... where the President can decide that it's in the best interests of the nation or something, and do something illegal.

Mr. Nixon: Well, when the President does it, that means it is not illegal.

Mr. Frost: By definition.

Mr. Nixon: Exactly. ...

Talk to you later,
Walter

the breakfast table
entries
12345678910
from: Walter Dellinger
to: Dahlia Lithwick

Will the Court Limit Presidential Authority?

Posted Thursday, June 24, 2004, at 12:04 PM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor.
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