Scalia scores court activism

Justice Antonin Scalia ended the Supreme Court term with some harsh words for his colleagues.

“This court seems incapable of admitting that some matters — any matters — are none of its business,” he wrote on the court’s final day.

Only fellow conservative Clarence Thomas wrote more dissents than Justice Scalia in the nine-month term that ended last week. In the final days, Justice Scalia complained about a misguided court that “seems to view it as its mission to Make Everything Come Out Right,” even with wrong rulings.

In some of his sharpest criticism, Justice Scalia called the court irresponsible in ruling that foreign terror suspects held in Cuba may challenge their treatment in U.S. courts.

It was one in a line of decisions by the justices this year that found American courts open to lawsuits over such things as international human rights abuses, on-the-job sexual harassment, World War II-era disputes over looted property, claims that states aren’t accommodating disabled residents and accusations of unconstitutional partisan gerrymandering in legislative-boundary drawing.

Justices also said that U.S. courts and their protections were available to Americans accused by the president of being enemy combatants, another defeat for the Bush administration.

Chief Justice William H. Rehnquist, who has generally steered a conservative course for the court, settled for a more moderate year.

“I can’t think of a major conservative victory,” said John McGinnis, a conservative law professor at Northwestern University. “They may be running out of steam.”

The terrorism ruling that Justice Scalia criticized as irresponsible, clumsy and strange was written by John Paul Stevens, the court’s oldest justice and its longest-serving liberal.

Usually known as the maverick for his dissents, Justice Stevens showed his ability to form alliances and was on the winning side in 16 of the court’s 20 most significant cases. When he was on the losing side, he wrote to explain why.

He said that a Nevada cattle rancher “acted well within his rights when he opted to stand mute” when a police officer asked his name. The court, however, ruled that police can demand the names of people they suspect of wrongdoing and arrest those who don’t comply.

Justice Stevens, 84, a veteran of World War II, filed a dissent when the court said that a U.S. terrorism suspect arrested and detained in America without legal rights would have refile his lawsuit in a different court. He said that even at war a country cannot “be justified by the naked interest in using unlawful procedures to extract information.”

Several potential blockbuster cases sputtered. Justices ruled narrowly that states don’t have to underwrite the religious training of students planning careers in the ministry. Justice Stevens crafted a ruling that dodged a decision on whether the Pledge of Allegiance and its reference to God in public schools is constitutional. The court found that a California atheist could not challenge the oath because he did not have legal authority to speak for his daughter.

The justices backed off another case about White House secrecy, leaving for another day the question of whether Vice President Dick Cheney must reveal the inner workings of his energy task force.

In some instances, the court showed it does not have all the answers. In others, it seemed to say the court will get back to us later, said Washington lawyer Thomas Goldstein.

Story Continues →