The Right Coast

April 20, 2004
Dueling Justices
By Mike Rappaport

Consider this account of Justices Breyer and Scalia debating, while Ted Olson looks on, whether the Supreme Court should allow the Guantanamo prisoners access to federal courts:
    Justice Breyer suggested that the court could adopt a "protective but practical" standard for evaluating the merits of the petitions. Justice Breyer continued: "We have the possibility of really helping you with what you're really worried about, which is undue court interference, by shaping the substantive right to deal with all those problems of the military that led you to begin your talk by reminding us of those problems. So if that's the choice, why not say, `Sure, you get your foot in the door, prisoners in Guantánamo,' and we'll use the substantive rights to work out something that's protective but practical?"

    Mr. Olson barely had a chance to respond before Justice Antonin Scalia began to make his argument for him. Addressing Mr. Olson, but clearly aiming his rebuttal at Justice Breyer, Justice Scalia said: "We can't call witnesses and see what the real problems are, can we, in creating this new substantive rule that we're going to let the courts create." He continued: "We have only lawyers before us, we have no witnesses, we have no cross-examination, we have no investigative staff. And we should be the ones, Justice Breyer suggests, to draw up this reticulated system to preserve our military from intervention by the courts?"

    The exchange provided one of the few dramatic moments of the argument, indicating that however the court resolves this case, the decision is not likely to be unanimous.