I’m not going to pretend to be scandalized by Scalia’s apparent before-the-fact discussion of the merits of Hamdan v. Rumsfeld. I certainly don’t hold the naive view that Supreme Court justices approach cases with an open mind ready to be persuaded of anything, and in particular oral arguments at the Supreme Court level mean very little (and, indeed, I have defended Justice Thomas from ignorant claims that anything can be inferred from the fact that he rarely speaks at oral argument.) Still, there is something about what seems to be a pretty clear violation of the court’s norms that’s offensive, particularly from Scalia, who attacks his colleagues frequently and pompously for alleged deviations from proper judicial practice. (As Dahlia Lithwick points out, he’s becoming more and more the Bill O’Reilly of the Supreme Court.) Particularly galling is Scalia’s claim in the interview that the Florida court in 2000 was “politicized,” when in fact it consistently applied a perfectly defensible interpretation of the Florida statutes even though this interpretation favored Bush in a majority of cases. (A “politicized” court, for example, surely would have thrown out technically illegal non-postmarked absentee military ballots that almost certainly favored Bush.) Bush v. Gore, conversely, was both completely unprincipled on its face and completely irreconcilable with any substantive legal view or theory of interpretation previously expressed by Scalia, and his stay opinion all but assumes that his preferred candidate was entitled to the Presidency. As Goldstein points out, it’s impossible to say whether Scalia is bound to recuse himself, but his comments are, at least, highly grating.
Yesterday’s oral argument, however, did seem to give some reason for optimism. Both Lyle Denniston and Linda Greenhouse think there are probably five votes to hear the case rather than using a jurisdictional dodge or accept the argument that Congress stripped the Court’s jurisdiction, and both seems to think (as does Lithwick) that it’s very possible that the government will not win on the merits. (In case you’re wondering, the government won at the previous level, so 5 votes are still necessary to curtail the government’s authority despite Roberts’ recusal; a tie would mean the upholding of the military commissions.) Scalia (and, of course, the hyper-statist Alito) were predictable, as Greenhouse reports:
Of the other members of the court, Justice Antonin Scalia appeared most supportive of the administration. He intervened several times to offer Mr. Clement a helping hand, something the solicitor general rarely needs but accepted gratefully.
For example, Justice Kennedy was questioning Mr. Clement on the government’s position that even if the court had jurisdiction, it should abstain from ruling on the validity of the military commission until after Mr. Hamdan’s trial.
Justice Kennedy said he found the argument troubling, pointing out that Mr. Hamdan was arguing that because the commissions lacked the procedures required by the Geneva Conventions, they were invalid. “The historic office of habeas corpus is to test whether or not you’re being tried by a lawful tribunal,” Justice Kennedy said. “And he says, under the Geneva Convention, as you know, that it isn’t.”
Mr. Clement replied that Mr. Hamdan could raise that argument later, before the military commission itself. He predicted that the argument would fail and said that in any event, there was no reason “why that claim has to be brought at this stage.”
Justice Scalia then jumped in to support the solicitor general. “In the normal criminal suit,” he said, “even if you claim that the forum is not properly constituted, that claim is not adjudicated immediately.”
Along with Justice Scalia, Justice Samuel A. Alito Jr. also appeared to support the argument that the court should allow the trial to go forward. Justice Clarence Thomas alone asked no questions.
Hopefully there will be 5 votes to reverse, so that Scalia’s failure to recuse himself won’t end up mattering.