Disorder in the Court

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Roberts emphasized that a good court should decide cases narrowly so Justices on both sides can reach a meaningful consensus. But he added an important qualifier: "There will of course be disagreements on the court, and these could and should not be artificially suppressed." Roberts practiced what he preached in his three dissents, using often forceful prose. "It is a sordid business, this divvying us up by race," he declared last week in the partisan-gerrymandering case, which left all but one of Texas' redrawn congressional districts in place. Earlier in the term, he attacked an opinion by Justice David Souter that held that a wife couldn't give the police permission to search a house over her husband's objection. "The majority reminds us, in high tones, that a man's home is his castle," Roberts wrote, "but even under the majority's rule, it is not his castle if he happens to be absent, asleep in the keep, or otherwise engaged when the constable arrives at the gate."

Souter responded in kind. "In the dissent's view, the centuries of special protection for the privacy of the home are over," he announced with an uncharacteristic note of melodrama. Having abandoned his famous Yankee reserve, he started to make a habit of it. During oral arguments in the Gitmo case, the government's lawyer seemed to suggest that Congress could suspend the writ of habeas corpus--which allows prisoners to challenge the legality of their detentions--inadvertently. Souter, incredulous, asked, "Isn't there a pretty good argument that a suspension of the writ [by] Congress is just about the most stupendously significant act that the Congress of the United States can take? The writ is the writ!" Antonin Scalia, one of the most reliable defenders of Executive power, insisted that Congress could suspend habeas corpus even if it didn't say so explicitly.

That mini courtroom brawl between Souter and Scalia, which had the overtones of an 18th century boxing match, was picked up again in the final days of the term. By a 5-to-4 vote, the court upheld a death-penalty verdict in Kansas, and Souter filed an agonized dissent listing recent cases in which DNA testing had led to innocent people's exoneration. Dripping with sarcasm, Scalia chided Souter for encouraging the "sanctimonious criticism of America's death penalty" that he said was common in "some parts of the world." "I say sanctimonious," Scalia added, "because most of the countries to which these finger waggers belong had the death penalty themselves until recently."

Scalia is famous for picking intellectual street fights on and off the court, and this year he has been even more pugnacious than usual. In March, Scalia ridiculed the challenge to military tribunals during a speech in Switzerland. "Give me a break," he declared. "I had a son on that battlefield, and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean, it's crazy."

A few weeks later, when a Boston reporter asked whether his participation at a Mass for Catholic lawyers might raise questions about his impartiality, Scalia fanned the fingers of his right hand under his chin. "That's Sicilian," he said, explaining that the gesture meant he "could not care less."