Positive Liberty

Justice Scalia’s dissent and the question of jurisdiction

Earlier I said I’d put off explanation of the jurisdictional aspect of the case. Now we have to look at it, because Justices Scalia, Thomas, and Alito all dissented on the grounds that (1) the Court did not have the authority to hear the case, and (2) even if it did, it should choose not to hear the case out of respect for the office of the Presidency.

The first argument (that the Court lacked jurisdiction) is based on the Detainee Treatment Act, passed in December of last year. That Act includes provisions which prohibit any court from reviewing cases brought by habeas corpus by detainees at Guantanamo Bay. Everyone agrees that this prohibits the Supreme Court from taking these cases, but at the time that the Act was passed, the Hamdan case had already been filed. So the dispute between Scalia, Thomas, and Alito on one hand, and Stevens, Souter, Breyer, Kennedy, and Ginsburg on the other (Roberts sat this case out, remember) is whether this “jurisdiction-stripping” Act applies to cases that were pending at the time the Act was passed, or only to cases filed after the Act was passed.

Scalia argues that the Act prohibits courts from hearing cases even if they were pending at the time the law was enacted. He has a lot of precedent to support his position. The case of Ex Parte McCardle is the most famous—an extreme case in which Congress, afraid of the Court’s decision in a case involving a newspaper editor who was jailed for criticizing the President during the Civil War, revoked jurisdiction while the case was pending, and the Court dismissed the case, saying that the Congress is allowed to do that. Scalia, of course, has a lot of other cases to support Congress’ authority to zap pending cases in this way. (See p. 6 of his opinion). And he cites Bruner v. United States, 343 U.S. 112 (1952), for the proposition that a jurisdiction-stripping act always applies to cases that are pending and not just to future cases.

Justice Stevens, on the other hand, argues that this rule is not an inflexible rule. It’s really just a presumption, so, where appropriate, the Court can disregard it. Stevens says there’s sort of a battle of presumptions going on. (See pp. 12-13 of the majority opinion). There’s this presumption that a jurisdiction-stripping Act applies to pending cases, but there’s also a presumption called “the exclusion alterius rule,” (although that term is not used in the opinion) which says that if the Congress says A, B, and D, then you can presume that it intended to exclude C, and therefore it’s wrong to do C, whatever it was. In the Detainee Treatment Act, the Congress wrote as follows:

(1) In General.—This section shall take effect on the date of the enactment of this Act.
(2) Review of Combatant Status Tribunal And Military Commission Decisions.—Paragraphs (2) and (3) of subsection (e) shall apply…to any [case]…that is pending on or after the date of the enactment of this Act.

So what about Paragraph (1)? Stevens says that Congress intentionally excluded it under the “exclusio alterius rule.” Scalia, on the other hand, says it’s just always the rule that if a law “shall take effect on the date of the enactment,” that means it applies to pending cases. (See p. 4 of the dissent: “what the Court calls a ‘presumption’ is simply the acknowledgment of the unambiguous meaning of such provisions.”) In fact, Scalia says, this rule is so strong that courts usually require the legislature to say when it does not mean for its jurisdiction-stripping Acts to affect pending cases (which Congress didn’t say here) (see pp. 6-7).

Why, then, did Congress not say anything about Paragraph (1), when it did say something about Paragraphs (2) and (3)? Because “the rule of Bruner [is] applicable to [section (1)], but not to [sections (2)] and (3)” (p. 9). This is because recent cases have held that laws which create jurisdiction in courts are typically retroactive, while laws which “jurisdiction-ousting provisions…are not retroactive even when applied in pending cases.” (p. 8). And this area of the law is so complicated that even Justice Stevens has said that it’s largely based on “sound instincts” and “considerations of fair notice” and “settled expectations” and so forth. (p. 9) So it’s reasonable to think that Congress was confident that section (1) would automatically apply to pending cases, while sections (2) and (3) might not automatically apply, so Congress had to state it directly. And that means that the “exclusio alterius” rule should not be used here.

Stevens also points out that many members of Congress said during the debates that the Detainee Treatment Act would strip the Supreme Court of jurisdiction over the Hamdan case. Scalia counters with quotes that say the opposite, reiterating his often-expressed view that such statements should not be relied on at all by the Court, in part because “these statements were made when Members of Congress were fully aware that our continuing jurisdiction over this very case was at issue. The question was divisive and floor statements made on both sides were undoubtedly…crafted solely for use in the briefs in this very litigation.” (p. 13).

Now, Scalia has to address the issue of the suspension of habeas corpus. If, as he thinks, the Detainee Treatment Act eliminates jurisdiction, does it do so in a constitutional manner? Yes, he says, because the Constitution’s rule against suspending habeas corpus only applies within the territory of the United States, and Guantanamo Bay is not within the United States. (p. 16). Moreover, the Detainee Treatment Act provides an alternative appeals process, in that detainees can appeal the detention rulings to the D.C. Circuit Court of Appeals, and “the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus.” (p. 16, quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)). And they may appeal “every aspect of the military commissions, including the fact of their existence and every respect in which they differ from courts-martial.” (p. 17). So Hamdan can still have his day in court under the Detainee Treatment Act—he can wait for a final detention order, appeal to the D.C. Circuit, and from there to the U.S. Supreme Court. “Thus the [Act] merely defers or jurisdiction…it does not eliminate that jurisdiction.” (pp. 17-18). Yes, there may be an indefinite delay waiting for a final decision before he can appeal to the D.C. Circuit, but he “is already subject to indefinite detention under our decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).” (p. 18 footnote 7).

Therefore, Scalia concludes that the Court has no power to hear the case at this point. But even if it did have the power, he argues, it shouldn’t exercise it. Under the Councilman case, courts generally abstain from interfering in cases involving the military. The majority of the Court rejects this argument (see pages 21-22 of Stevens’ opinion) because under the Councilman case, courts will decline to hear cases for two primary reasons: because for the Court to hear the case might interfere with military discipline, and because Congress has created an integrated system of military courts and the judicial branch should respect that. Neither of these considerations are involved here, Justice Stevens says, because this isn’t a military discipline case (Hamdan isn’t a member of the U.S. Army), and because the military tribunals being used here are not part of the integrated system of military courts that Congress has created. (p. 22 of Stevens’ opinion).

Scalia admits that “Councilman does not squarely control [this] case,” (p. 19), but the principles that the Councilman case involves suggest that the Court should decline this case. First, as to military discipline, there are still “other ‘military necessities’ or ‘unique military exegencies’ comparable in gravity to those at stake in Councilman.” (p. 20). And the military tribunal system, Scalia argues, is an integrated system that courts should not second-guess. Courts should “exercise our equitable discretion to avoid such conflict” between the judiciary and the executive branch, especially in wartime. (p. 23).

Since Scalia believes that the Court lacks jurisdiction and shouldn’t exercise it even if it has it, he does not address whether or not the Court is correct on the rest of the issues in the case.

Trackback URI |