Le Opinioni Di Dissentire


Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004).

In this case Yaser Esam Hamdi, a United States citizen, was accused of engaging in armed combat against the United States in Afghanistan, and as such, was held by the U.S. military as an enemy combatant. Hamdi’s father filed the present writ of habeas corpus alleging that the government has held Hamdi without access to counsel or notice of any charges pending against him. The petition further alleges that as an American citizen, Hamdi enjoys the full protections of the Constitution and that Hamdi’s detention in the United States without charges, access to an impartial tribunal, or assistance of legal counsel violates the 5th and 14th Amendments to the United States Constitution.

The government’s only evidence for holding Hamdi, is the Mobbs Declaration. This statement consists of only hearsay testimony from Michael Mobbs, Special Advisor to the Under Secretary of Defense for Policy, and asserts that Hamdi traveled to Afghanistan, affiliated with the Taliban, received weapons training, and engaged in battle against the United States. Mobbs contends that since the Taliban is a hostile force engaged in armed conflict with the United States, individuals associated with that group are enemy combatants.

The District Court found that the Mobbs Declaration did not support Hamdi’s detention. The U.S. Court of Appeals for the 4th Circuit reversed, finding that Hamdi’s detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy combatant label. It dismissed the habeas corpus petition. The Supreme Court granted certiorari and issued its decision in a plurality opinion.

The plurality opinion considers whether the Executive has the authority to detain citizens who qualify as enemy combatants, and if so, what process is constitutionally due to a citizen who disputes his enemy combatant status. The plurality concludes that the President does in fact have the authority to detain citizen enemy combatants and citizen-detainees seeking to challenge their classification as enemy combatant must receive notice of the factual basis for the classification and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker.

The plurality reached its decision by acknowledging that compelling interests exist on both the side of the government and the side of citizens accused of being enemy combatants, and further that these interests must be weighed to strike a balance without sacrificing national security or personal liberties. The plurality reasoned that while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core right to meaningfully challenge the government’s case, and to be heard by an impartial adjudicator. The Court vacated the decision of the lower court and remanded the case.

Justice Scalia writes a dissenting opinion because he sees only two options when it comes to the government’s allegation that a citizen is waging war against it. Scalia believes that the accused must either be prosecuted in a federal court for treason or some similar crime, or– where the exigencies of war prevent that–Congress must invoke the suspension clause to temporarily relax the usual protections of habeas corpus. Scalia believes that absent suspension, the Executive’s assertion of military exigency to detain a citizen is insufficient. In sum, Scalia believes that absent suspension of the writ of habeas corpus, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release. Because Scalia views the Constitution as presenting only two options in cases such as Hamdi’s, he opines that the plurality has proceeded to meet the current emergency unconstitutionally, and as such, he respectfully dissents.


Ashcroft v. American Civil Liberties Union, 124 S. Ct. 2783 (2004).

The respondents in this case are Internet content providers and others concerned with protecting the freedom of speech. They filed suit in the Eastern District of Pennsylvania and sought a preliminary injunction against the enforcement of the Child Online Protection Act (COPA). The Child Online Protection Act is the second attempt by Congress to make the Internet safe for minors by criminalizing certain Internet speech.

The United States Court of Appeals for the Third Circuit concluded that the statute was not narrowly tailored to serve a compelling interest, was over-broad, and was not the least restrictive means available for the government to serve the interest of preventing minors from using the Internet to gain access to sexually explicit materials that are harmful to them. Upon the grant of a writ of certiorari, the Attorney General appealed the judgment of the Court of Appeals and the Supreme Court issued its judgment in a plurality opinion.

The plurality opinion questions whether the Court of Appeals was correct to affirm a ruling by the District Court that enforcement of COPA should be enjoined because the statute likely violates the 1st Amendment. The plurality concludes that the Court of Appeals correctly decided that the District Court did not abuse its discretion in entering the preliminary injunction. The case is remanded so that it may be returned to the District Court for trial.

The plurality reasoned that a statute that effectively suppresses a large amount of speech that adults have a constitutional right to receive is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. Since the record before the Court reveals that blocking or filtering technology may be at least as successful as COPA would be in restricting minors’ access to harmful material online without imposing the burden on constitutionally protected speech of adult users or website operators, COPA appears to be unconstitutional. Since the government has not shown that less restrictive alternatives proposed by the respondents should be disregarded, the injunction is valid.

Justice Scalia writes a dissenting opinion claiming that COPA is constitutional and the plurality erred in subjecting COPA to strict scrutiny. Scalia holds that nothing in the 1st Amendment entitles the type of material covered by COPA to that exacting standard of review, and as such it may be upheld.


Cox v. Larios, 124 S. Ct. 2806 (2004).
( Majority & Dissenting opinions )

This case deals with legislative reapportionment plans for the State House of Representatives and the Senate in the state of Georgia. The record reveals that democratic incumbents attempted to draw districts that would enhance their own prospects at re-election. The District Court held that the legislative reapportionment plans violate the one person, one vote principle of the Equal Protection Clause. That Court’s findings disclosed two reasons for the unconstitutional population deviations in the plans: 1. Deliberate and systematic policy of favoring rural and inner-city interests at the expense of suburban areas north, east, and west of Atlanta and 2. Intentional effort to allow incumbent democrats to maintain or increase their delegation, primarily by systematically under-populating the districts held by incumbent democrats by over-populating those of republicans, and by deliberately pairing numerous republican incumbents against one another.

The Supreme Court reviewed this case questioning whether the reapportionment plans did in fact violate the Constitution. The Court affirmed the District Court’s ruling that a constitutional violation did exist, reasoning that drawing district lines that have no neutral justification in order to place two incumbents of the opposite party in the same district is probative of impermissible intent. In making its decision the Court rejected the appellant’s invitation to weaken the one person, one vote standard by creating a safe harbor for population deviations of less than ten percent within which districting decisions could be made for any reason whatsoever.

Justice Scalia dissents, claiming that a substantial case can be made that Georgia’s redistricting plan did comply with the Constitution as a result of the established ten percent safe harbor. He claims that a series of cases establish the principle that minor deviations among districts– less than ten percent– are insufficient to make out a prima facie case of invidious discrimination under the 14th Amendment so as to require justification by the state. Scalia concludes that it is not obvious to him that a legislature goes too far when it stays within the ten percent disparity in population that prior cases allow. Scalia maintains that to say the legislature does go too far invites allegations of political motivation wherever there is population disparity, and thus destroys the pre-existing ten percent safe harbor.


Tennessee v. Lane, 541 U.S. 509 (2004).

The respondents in this case filed an action against the state of Tennessee alleging past and ongoing violations of Title II of the Americans with Disabilities Act of 1990. Title II provides that no qualified individuals with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. The respondents, both of whom are paraplegics who use wheelchairs, claimed that they were denied access to, and the services of the state court system by reason of their disabilities. Respondent George Lane alleged that he was compelled to appear to answer a set of criminal charges on the second floor of a courthouse that had no elevator. At his first appearance, Lane crawled up two flights of stairs to get to the courtroom. When he returned to the courthouse for a hearing he refused to crawl again or to be carried by officers to the courtroom. He was consequently arrested and jailed for failure to appear. Another respondent, Beverly Jones, was a certified court reporter who alleged that she has not been able to gain access to a number of county courthouses and, as a result, has lost both work and an opportunity to participate in the judicial process. The respondents sought damages and equitable relief.

The State moved to dismiss the suit on the ground that it was barred by the 11th Amendment which renders the state immune from any suit in law or equity commenced by citizens of that state or another state. The District Court denied the State’s motion to dismiss and the Court of Appeals for the 6th Circuit affirmed. The Supreme Court granted certiorari and issued its decision in a plurality opinion.

The plurality opinion considers whether Title II exceeds Congress’ power under section 5 of the 14th Amendment. The plurality considers whether, in the case of Title II, Congress has abrogated the state’s 11th Amendment immunity by considering whether Congress unequivocally expressed its intent to abrogate that immunity and, if it did, whether Congress acted pursuant to a valid grant of constitutional authority. The plurality quickly disposes of the first question by answering it affirmatively since Title II specifically provides that a state shall not be immune under the 11th Amendment from an action in federal or state court of competent jurisdiction for a violation of this chapter. The plurality then considers the second question in more length, ultimately answering it too in the affirmative. The plurality reasons that Congress can abrogate state sovereign immunity pursuant to a valid exercise of its power under section 5 of the 14th Amendment, but that that power is not unlimited. While Congress has wide discretion in devising appropriate remedial and preventative measures for unconstitutional actions, those measures may not work a substantive change in the governing law. The test for distinguishing between permissible remedial legislation and unconstitutional substantive redefinition holds that section 5 legislation is valid if it exhibits “a congruence and proportionality” between an injury and the means adopted to prevent or remedy it. The plurality ultimately decides that Title II is an appropriate response to a history of unequal treatment and that it is valid section 5 legislation as it applies to the class of cases dealing with accessing legal services. Furthermore, Congress’ remedy, Title II’s requirement of accessibility, is congruent and proportional to its aim of maintaining the right of access to courthouses.

Justice Scalia writes a dissenting opinion in which he attacks the “congruence and proportionality” standard relied on by the plurality. Calling it a “flabby test,” Scalia views it as nothing more than an invitation to judicial arbitrariness and policy-driven decisionmaking. Scalia views this type of standard as a way for the Court to “check the homework” of Congress, making sure it has identified sufficient constitutional violations to make its remedy “congruent and proportional.” Scalia maintains that in general, rules or standards that bring coequal branches of government into conflict should be avoided. Furthermore, Scalia alleges that the congruence and proportionality test can never be proved to have been met or failed. Scalia would replace this test with another that provides clear, enforceable limitation. Scalia also feels that the breadth the plurality affords to section 5 only applies in racial discrimination cases. Scalia believes that requiring access for disabled persons to all public buildings cannot be considered a means of enforcing the 14th Amendment. Scalia believes that the plurality’s decision is nothing more than well-intentioned textual distortion, and for these reasons, he respectfully dissents.