The Nine [131]
O’Connor had become an evangelist for the cause of judicial independence, and she used Hamdi to remind the administration that this Court—her Court—would never become a rubber stamp: “The position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens.” If there was any doubt what O’Connor meant, she waved the bloody shirt of one of the worst moments in the Court’s history—by citing Korematsu itself—to drive home her point.
Remarkably, O’Connor’s view was the moderate one on the Court. She said that Hamdi could not be detained without a hearing of some kind but that he did not necessarily have to receive the full protections afforded a criminal defendant. Scalia, of all people, wrote a dissenting opinion (joined by Stevens, an unfamiliar bedfellow) saying that the Bush administration’s entire concept of detention of enemy combatants was unconstitutional for American citizens.
Scalia said O’Connor had been too soft on the Bush administration, arguing that Hamdi should be charged with a federal crime—or released immediately. “The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders’ general mistrust of military power permanently at the Executive’s disposal,” Scalia the originalist added. “Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.” Only a single justice, Thomas, accepted the administration’s position.
Rasul and Hamdi were notable also for the fact that on these most crucial cases about the nature of executive and judicial power, the chief justice did not write a majority opinion, dissent, or concurrence. Rehnquist joined Scalia’s dissent in Rasul and O’Connor’s opinion for the Court in Hamdi; Rehnquist only wrote the majority opinion in Padilla, which resolved that case on procedural grounds.
The relative invisibility of a chief justice on matters of such magnitude would be unusual in any circumstances, but it was especially odd for Rehnquist to remain silent on this particular subject. Since his days in the Justice Department during the Nixon years, and then on the Court, Rehnquist had been an outspoken proponent of executive power versus the other branches of government. Like federalism, it was a signature issue for him. Rehnquist signed on to O’Connor’s harsh scolding of Bush, but did he really believe it? His silence was a mystery.
In truth, Rehnquist was a tired old man in the spring of 2004. And he had grown cynical about the work of the Court. Over the years, his opinions had become more terse and cryptic because he had come to think that only the results, not how the justices explained them, really mattered. As Rehnquist told one colleague, who was shocked by the chief’s gloom, “Don’t worry about the analysis and the principles in the case. Just make sure that the result is a good one this time around—because those principles you announce will be ignored in the next case.” The chief didn’t write in Rasul or Hamdi because he didn’t think the opinions mattered very much; only the votes did.
Increasingly, Rehnquist didn’t have the votes. It was now the Rehnquist Court in name only. Since Bush v.