Memo to the Chief Justice: contempt for your fellow Justices is a Bad Thing(TM)

Posted on June 12, 2008


I respectfully dissent. – Chief Justice Roberts, Boumediene v. Bush, 553 U.S. (2008) (emphasis added)

Any time you hear someone say something like “with all due respect” or “respectfully,…”, you know that you’re about to bear witness to an extraordinary insult. Or that you just witnessed such. In the case of Chief Justice’s Roberts’ dissent to today’s 5-4 decision against the detention of “enemy combatants” without access to due process under habeas corpus (the Constitutional right to challenge your detention as unlawful in a federal court), his statement comes at the end of a 28-page dissent that drips contempt for the Justices in the majority.

Frustration with his fellow Justices is totally understandable. Anger, even. Dislike of them is reasonable, even outright hatred. But contempt – that’s the worst thing one person can have for another, and the fact that the man leading the Supreme Court of the United States has contempt for his fellow Justices bodes ill indeed.

It’s entirely possible, albeit difficult, to work with people you dislike, even hate. But doing so requires at least some amount of respect, and that respect is definitionally absent from someone who feels contempt for another. Mirriam-Webster’s online dictionary defines “contempt” (in the non-judicial sense, ie “contempt of court”) as follows:

contempt: a: the act of despising : the state of mind of one who despises : disdain b: lack of respect or reverence for something

Diving deeper, if you look up the definitions of “disdain,” and “despise”, you find they mean the following:

disdain: a feeling of contempt for someone or something regarded as unworthy or inferior


  1. to look down on with contempt or aversion
  2. to regard as negligible, worthless, or distasteful

In other words, if you feel contempt for another, you a) don’t respect them, b) regard them as unworthy or inferior, and c) view them as negligible, ie insignificant and inconsequential. And the language that the Chief Justice choose to use in his dissent reveals that this is most definitely how he feels about Justices Kennedy, Souter, Stevens, Ginsburg, and Breyer. The following is an attempt at an exhaustive list of all the times that Chief Justice Roberts used contemptible language in his dissent, along with some quotes to give you background into the Chief Justice’s thoughts.

One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

The Court does eventually get around to asking whether review under the DTA is, as the Court frames it, an “adequate substitute” for habeas, but even then its opinion fails to determine what rights the detainees possess and whether the DTA system satisfies them. The majority instead compares the undefined DTA process to an equally undefined habeas right—one that is to be given shape only in the future by district courts on a case-by-case basis. This whole approach is misguided. (emphasis added)

I believe the system the political branches constructed adequately protects any constitutional rights aliens captured abroad and detained as enemy combatants may enjoy. I therefore would dismiss these cases on that ground. With all respect for the contrary views of the majority, I must dissent. (emphasis added)

It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim. (emphasis added)

This point is directly pertinent here, for surely the Due Process Clause does not afford non-citizens in such circumstances greater protection than citizens are due. (emphasis original, bold added)

The Court acknowledges that “the ordinary course” would be not to decide the constitutionality of the DTA at this stage, but abandons that “ordinary course” in light of the “gravity” of the constitutional issues presented and the prospect of additional delay. It is, however, precisely when the issues presented are grave that adherence to the ordinary course is most important. A principle applied only when unimportant is not much of a principle at all, and charges of judicial activism are most effectively rebutted when courts can fairly argue they are following normal practices. (emphasis added)

The majority’s overreaching is particularly egregious given the weakness of its objections to the DTA.

Congress followed the Court’s lead, only to find itself the victim of a constitutional bait and switch [today’s decision].

The majority attempts to dismiss Hamdi’s relevance by arguing that because the availability of §2241 federal habeas was never in doubt in that case, “the Court had no occasion to define the necessary scope of habeas review . . . in the context of enemy combatant detentions.” Hardly. Hamdi was all about the scope of habeas review in the context of enemy combatant detentions. The petitioner, an American citizen held within the United States as an enemy combatant, invoked the writ to challenge his detention. (emphasis added)

The Court, however, will not take “yes” for an answer.

For my part, I will assume that any due process rights petitioners may possess are no greater than those of American citizens detained as enemy combatants. (emphasis added)

The Court further complains that petitioners lack “the assistance of counsel,” and—given the limits on their access to classified information—”may not be aware of the most critical allegations” against them. None of these complaints is persuasive. (emphasis added)

The Implementation Memo requires only that detainees’ witnesses be “reasonably available,” a requirement drawn from Army Regulation 190–8, ch. 1, §1–6(e)(6), and entirely consistent with the Government’s interest in avoiding “a futile search for evidence” that might burden warmaking responsibilities. The dangerous mission assigned to our forces abroad is to fight terrorists, not serve subpoenas. (emphasis added)

What alternative does the Court propose? Allow free access to classified information and ignore the risk the prisoner may eventually convey what he learns to parties hostile to this country, with deadly consequences for those who helped apprehend the detainee? If the Court can
design a better system for communicating to detainees the substance of any classified information relevant to their cases, without fatally compromising national security interests and sources, the majority should come forward with it. Instead, the majority fobs that vexing question off on district courts to answer down the road. (emphasis added)

The Court hints darkly that the DTA may suffer from other infirmities, see ante, at 63 (“We do not imply DTA review would be a constitutionally sufficient replacement for habeas corpus but for these limitations on the detainee’s ability to present exculpatory evidence”), but it does not bother to name them, making a response a bit difficult. As it stands, I can only assume the Court regards the supposed defect it did identify as the gravest of the lot.

If this is the most the Court can muster, the ice beneath its feet is thin indeed. (emphasis added)

The Court’s hand wringing over the DTA’s treatment of later-discovered exculpatory evidence is the most it has to show after a roving search for constitutionally problematic scenarios. (emphasis added)

The Court grudgingly suggests that “Congress’ silence on the question of remedies suggests acquiescence to any constitutionally required remedy.” (emphasis added)

The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

The majority rests its decision on abstract and hypothetical concerns. Step back and consider what, in the real world, Congress and the Executive have actually granted aliens captured by our Armed Forces overseas and found to be enemy combatants: (emphasis added)

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

I respectfully dissent. (emphasis added)

“Misguided”. “Grossly premature.” “Surely.” “Judicial activism.” “Overreaching is particularly egregious.” “Hardly.” “Complains.” “Fobs…off.” “Hints darkly.” “Hand wringing.” “Grudgingly.” “In the real world.” All together, this is the picture that the Chief Justice’s language paints: The Majority is not only wrong, but obviously so. The Majority cannot be right because they’ve glaringly tried to claim too much, and that fact is apparent to everyone who has the right ideals. The Majority is excessively concerned about theory over fact and is reluctant to face the fact that their decision is childish and immature.

Justice Scalia’s dissent shows about as much respect for Scalia’s peers as the Chief Justice’s does. Scalia did, after all, choose to preface his entire opinion with the Supreme Court equivalent of “We’re at war, you idiots! Letting more psycho terrorists out of Gitmo (some of whom have gone on to kill more of our allies) is about as rock stupid as you can get. What the hell are you thinking? Oh, that’s right – YOU’RE NOT!!!” I’ve chosen to focus on Chief Justice Roberts’ dissent because Justice Scalia has a long, well established, and justified reputation for holding his peers in similar contempt.

It’s always easier to work with people you like and respect. But if you can’t like the people you work with, you must at least be able to respect them. Chief Justice Roberts’ dissent, stuffed as it is with language that is full of contempt, makes it plain that he simply has no respect for the more liberal of his fellow Justices. And it’s not possible to have a productive working relationship without a foundation of respect. Think about it – if you can’t respect the quality of a coworker’s work, how can you trust that it’s right? If you can’t respect his or her work ethic, you can’t trust that he or she won’t claim your work as their own, or be done on time, or anything else. If you hold someone in contempt, they’re not your equal, so they’ll never be as good as you, even if they ultimately exceed you in every way.

Chief Justice Roberts’ dissent today shows he has no respect for his peers on the Supreme Court. That means, until such time as he respects them again, he will never trust that their judgment is correct. On anything. And so he’ll oppose them and work against them reflexively, and he’ll consider them to be his subordinates instead of his equals. And so, even if they’re right, it’ll just be because they recognized his inherent superiority, not because they could possibly be smart enough to agree with him on their own terms.

There are an infinite number of ways the Chief Justice could have written his dissent that could have shown he had respect for his fellow Justices. He chose not to. And in so doing, he has all but guaranteed that a Supreme Court already riven by internal division will never unite under his leadership.

Chalk up one more in the “Divider, not a Uniter” column….

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