Finality Seems to Elude High Court's Grasp
That opinion, by Souter for a six-justice majority, prompted Scalia to write scornfully of the court's "Never Say Never Jurisprudence."
There were exceptions to the general pattern.
By 5 to 4, the court upheld the Bipartisan Campaign Finance Reform Act, clearing the way for a ban on "soft money" donations and new regulations on "issue ads" on radio and television.
The court ruled unanimously that consumers may not sue their managed-care companies for medical malpractice under state law when a denial of coverage allegedly leads to death or injury. That put a stop to state "patients' rights" legislation and shifted all future political struggle over the issue to Congress.
Also, the court ruled that jurors, not judges, must find any facts that would result in a sentence higher than that called for in state guidelines, a ruling that invalidated state sentencing reform and threatened to invalidate federal sentencing rules as well.
But in the terrorism cases, some of the most eagerly anticipated wartime confrontations between the judiciary and the executive in modern times, the court struggled to speak with one voice.
In the pivotal case, Hamdi v. Rumsfeld, No. 03-6696, the court was asked to decide whether Bush could designate a U.S. citizen, Yaser Esam Hamdi, who was captured in Afghanistan while allegedly fighting for the Taliban, an enemy combatant and hold him in military custody indefinitely, without an opportunity to protest his innocence before an impartial arbiter.
Eight justices -- all but Thomas -- rejected the administration's contention that the federal courts could exercise no supervision over such a case.
But after that, they went their separate ways.
A four-justice plurality -- Rehnquist, O'Connor, Kennedy and Breyer -- gave the administration the mildest rebuke, agreeing that it had the authority to hold citizens as combatants -- at least in circumstances such as Hamdi's, where the citizen was detained in a combat zone abroad -- but that it would have to give him an opportunity to seek redress before "a neutral decisionmaker."
Scalia, joined by Stevens, dissented, arguing that the president has no right to hold a citizen as an enemy combatant unless Congress expressly authorizes it by suspending the writ of habeas corpus.
The unusual Scalia-Stevens alliance did show that, on the court as in Congress and the wider public, civil liberties is an issue that can unite some elements of the right and left.
But it was an alliance of only two. Souter, joined by Ginsburg, dissented, too, but on different grounds. They wanted no part of the plurality's decision to recognize even a limited presidential power to hold Hamdi as an enemy combatant.
But Souter and Ginsburg agreed to cast their votes for the part of the plurality's opinion that granted Hamdi a hearing.
Souter's opinion candidly acknowledged that, otherwise, there would be no majority holding in the case, and Hamdi would not actually get a hearing.
So much was left undecided, in fact, that some administration supporters claimed at least partial victory.
"If I were a detainee, I wouldn't be breaking out the champagne," said David B. Rivkin Jr., a lawyer here who advises the administration on terrorism issues.
© 2004 The Washington Post Company