The Breakfast Table

Are Pragmatic Compromises Lawless?

Dear Dahlia,

One last comment about yesterday’s detainee cases. I agree that the opinions show signs of being influenced by a reaction to the administration’s memos on torture. Some passages seem specifically designed to counter the assertions of unilateral executive authority that cannot be constrained even by an act of Congress like the torture act. Justice O’Connor’s prevailing opinion in Hamdi, for example, notes:

Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.

An interesting challenge was raised by Marty Lederman, a former Office of Legal Counsel lawyer. Based upon the opinions yesterday, he asks, how many justices would endorse the executive power assertions of the OLC torture memo? Marty can’t count even to one justice. He notes that even the lone dissenter in Hamdi, Justice Thomas, wrote that “Congress, to be sure, has a substantial and essential role in both foreign affairs and national security” and then cited the Steel Seizure Case (the landmark case, conspicuous by its absence from the DOJ memo, that suggests that presidential power is at it lowest when the president acts contrary to an act of Congress).

I agree with you that this court is in the hands of the pragmatists, centered upon Justices Breyer and O’Connor. The critics of pragmatism have a powerful critique to lodge against it. They say that however “pragmatic” a judicial compromise solution might be, it is, basically, lawless. 

Scalia was explicit about this today in Alverez-Machain. The question he addressed was whether federal courts could recognize as a basis for suit norms established by the practice of nations but not adopted into law by our Congress. He thought the answer an emphatic no. Scalia argued that the courts have no role here: Either Congress has made a “norm” of the law of nations a U.S. law by adopting legislation, or it has not. He responded with scorn for the majority’s decision to leave the door open for some few judicially recognized international-law-based causes of action, if done with great restraint, etc. He wrote, “This court seems incapable of admitting that some matters—any matters—are none of its business.” He calls the crack left open by the majority “today’s latest victory for Never Say Never Jurisprudence …” He rang the same chime yesterday by referring to Justice O’Connor as “Ms. Fix-It-Up” for her Hamdi middle-ground opinion finding that some independent tribunal and some process was due to detainees.

The Rules of the Constitution, as Justice Scalia reads them, should produce yes or no answers and not lead to the creation of “workable solutions” by pragmatic, but unelected, justices. I understand the appeal and the purity of the legalist position. But the older I get the more I feel the pull of pragmatism. I think this is because I lack some of the certainty I had as a young professor that I know the correct constitutional answers. There is a law of the Constitution and it fixes boundaries. But I don’t think that staring at the text of the 14th Amendment will ever make me certain that the Constitution either forbids all affirmative action or that it places no limit at all on such uses of race. Or that one can resolve the assertions of presidential power to protect national security and the competing claims of the individual rights by finding that one so clearly provides that exclusive Constitutional Rule that there is no warrant for the kind of compromise forged in these cases by Justice O’Connor and her pragmatic colleagues.

I wish I could say more about this term, but I have an argument in the 3rd Circuit tomorrow, and I have to write quickly and get back to preparing for that. Until next year?