Scalia's Derangement

I'm just setting down to read the big Habeas decision from SCOTUS. Thought I'd dash out one point that seems incredibly obvious about one of the dissents. Scalia is a smart guy who says incredibly stupid things, despite access to smart clerks and concurring justices, their clerks, and a community of lawyers who all presumably don't point out these stupidities because of some combination of laziness, subservience or groupthink. The NYT quoted his dissent, which makes a point in passing about the seriousness of the threat America is facing from its enemies in the GWOT. In the third paragraph of his dissent, Scalia says, "one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know the threat is a serious one." I find this remarkable.

Translating, Scalia is saying, look, we've received no evidence here that there is a serious ongoing threat, and we're not going to ask for any. Our chief of intelligence has told us that our enemies are on the ropes, their capacities destroyed, their entire organization on the verge of elimination. We're just going to take for granted that that's a load of political bullshit, and yet when the same government insists that the threat is so serious that it must buttress and barricade the capital city, we choose to accept this without question. In fact, why even refer to these signifiers of danger. All we need to look at is the government's decision to strip its accused enemies of habeas protections. Would they do that if the threat were not severe? Of course not. We're not going to doubt the sincerity or the wisdom of the political branches.

Having assumed at the outset that whatever is done is therefore justified, hence having disposed of every question before the court, Scalia goes on for 24 superfluous pages. This little piece of dicta is nothing less than the virtual repudiation of judicial review. Of course it's all just rhetorical garbage. Scalia will say anything that suits his immediate purposes and backtrack the next day, because it's all activism and no principle.