Writing and Titillation from the Bench

Perhaps it should be taken as an especially portentous sign that Scalia's dissent in Boumediene v. Bush was bereft of the justice's traditional portentousness, and was, rather, drab and lifeless in a fashion most uncharacteristic of our favorite justice (for whom any occasion to furnish his text with a literary flourish makes weak the berobed knees). Portentous indeed. For Scalia, I would suggest, was sexing down his text to fit the dissent's constituency: By which I of course refer to the national security fetishist crowd. 

The polemical portion of the opinion—for, as is his "usual practice" (Scalia's words there) the justice's dissents are typically accompanied by a foreboding exegesis on a given decision's "disastrous consequences" (again, his words)—followed the contours of the B-Movie, all fear and flash, zombies lurching, bullets flying, while, at the end, resembling something pretty crude and pandering and unnecessary. After all, Roberts had already cited the decision's "modest" (and, therefore, unnecessary) result, effecting as it does a mere administrative shift from a congressionally-mandated review process under the Detainee Treatment Act of 2005  to a yet-to-be-determined appellate review process in the federal courts. Scalia busies himself with the apposition of the Suspension Clause, a question itself inapposite given his ultimate conclusion that its burdens, were, in any event, met under the DTA.

And yet it becomes difficult to ignore the dissent's polemical ambitions and still harder to dislocate it from the political scene: "America is at war with radical Islamists," Scalia intones in the first line of the polemic. He proceeds to cite "the enemy" twice in the same paragraph and to set forth a questionable history of the US's engagement with "the enemy," beginning with the 1983 Marine barracks bombing in Lebanon. Sounding like a greater bore than Nietzsche on the subject, he continues: "It has further threatened attack on our homeland" and, elsewhere, "our countrymen" and "our Armed Forces." So, here we have these mutterland flourishes, written, in an unusual gesture, with a rhetorically yielding hand, and, the next day, we have McCain characterizing the ruling "as one of the worst decisions in the history of this country."

How are we to reconcile this unbecoming effort to excite the sympathy of a rather unbecoming constituency—this convenient provision of election season soundbites ("The Court's decision most certainly will cause more Americans to be killed")—with the justice's oft-proclaimed belief in political restraint? Not easily.