Kiss and Make It Up

What happens when there is no law constraining Alito.

Make it up as we go along

In the end, Samuel Alito almost, almost sold me last week with the enormously attractive, ceaselessly repeated mantra that a judge’s politics, ideology, preferences, and opinions really are irrelevant. Maybe the only thing that matters really is that a judge “apply the law” and maintain “an open mind.” Maybe all that liberal criticism of Alito really was just petty and personal. After all, he showed us that he knows the law. And if he says he has an open mind, who is really in a position to dispute that?

It took me a couple of days with a deprogrammer (and some long evenings with the bourbon) to fully unpack the problem with Alito’s very neat theory of judging. Maybe it almost works as applied to Roe v. Wade, where there are dozens of precedents and even super-precedents, as Arlen Specter loves to call them, to navigate. But all that nice jurisprudential wallpaper simply falls away where it really matters: the constitutional limits of the war on terror. When it comes to the reach of the president’s authority to pursue this war with a warrantless wiretap in one hand and a cattle prod in the other, there is almost no statutory authority or court precedent. Judges, specifically the justices of the Supreme Court, will in the end be making up the law more or less as they go.

If you indulge me for a just moment and imagine Alito as a wolf (albeit a smart, qualified, principled one), I’m suggesting that if the court’s abortion jurisprudence is made of some combination of straw and twigs, its war on terror jurisprudence is made of moth wings.

Consider Alito’s testimony when he was questioned on the executive power to torture or wiretap a criminal suspect. On the first day of questioning, Sen. Arlen Specter asked him about the president’s authority to conduct electronic surveillance without a wiretap if the Foreign Intelligence Surveillance Act expressly forbade it. Alito’s response: He’d look to the statute and then analyze it under Justice Jackson’s three-part test from the Youngstown Steel case. That case dates from 1952, and Jackon laid out his test in a concurrence, one of five concurrences, and not a majority opinion that spoke for the court. Youngstown involved President Truman’s attempts to seize steel mills in order to prosecute the Korean War. The court, by a 6-3 margin, rejected his claim. The concurrence suggested a structure for testing future presidential claims.

The three-part test laid out in Jackson’s Youngstown concurrence emerged again and again throughout these hearings as the main template for analyzing executive war power. Bracket the fact that at the hearings Judge Alito confused the second and third prongs of the Youngstown test. Should it not be just a bit troubling to the Senate that because there is so little substantive law on questions of executive authority, Alito and the courts must rely on a test set out in a half-century-old, nonbinding concurrence?

The other case that would supposedly constrain Justice Alito’s judgments about presidential power is Hamdi v. Rumsfeld, the 2004 blockbuster that allowed a so-called enemy combatant to challenge his indefinite detention, despite the Bush administration’s claims that U.S. citizens could be locked up indefinitely without charges on the president’s say-so. Hamdi contains the hugely quotable and quoted line, written by Justice Sandra Day O’Connor, that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.” The sole authority for that proposition? Youngstown.

Alito’s discussions of Hamdi at his hearings left it quite clear that the court’s fractured decision is only the beginning of—not the last word in—a battle over executive authority that will rage for years to come. In a conversation with Lindsay Graham, Alito noted that: “In Hamdi the court addressed this question of how long the detention should take place. And they said—because they were responding to the argument that this situation is not like the wars of the past which had a more or less fixed—it was not anticipated that they would go on for a generation. And they said: We’ll get to that if it develops that way.”

This is, he was really saying, still an open question. We’ll know the answer once the court has to make it up.

And in this later exchange with Sen. Graham, Alito made clear that the precedents in this area are, as a general matter, old, readily distinguished, and, in some cases, perhaps irrelevant:

Johnson v. Eisentrager (1950), of course, has been substantially modified, if not overruled. Ex Parte Quirin (1942), of course, is still a precedent. There was a lower precedent involving someone who fought with the Italian army. And I can’t remember the exact name of it. And that was the case that I thought you were referring to when you first framed the question. But those are the precedents in the area. Then, if you go back to the Civil War, there’s Ex Parte Milligan (1866) and a few others.

Decoded, that just means: “There are bunch of old cases whose names aren’t worth recalling that may have something to do with some of this stuff. But probably not.”

In the end, when it comes to questions about presidential war powers, it just doesn’t matter all that much whether a judge is a strict constructionist or an activist, a pragmatist, a textualist, or an originalist. Judicial promises to respect precedent are almost immaterial when the precedents are either ancient or nonbinding. What matters most when the case law falls away are ideology and politics.

In a new era, fighting a new kind of war unlimited by time or place, with guidance only from World War II- and Civil War-era cases and sloppily crafted statutes, judicial promises of modesty and humility offer little comfort. You can’t call balls and strikes until a strike zone has been invented. It will soon fall to the high court to determine the contours of executive authority, and the justices who will be on that court will have precious little to constrain them. Don’t worry, they’ll still call whatever they’re doing “strict construction.” But the only thing they may be strictly construing is the president’s will.