Silberman on the Constitutionality of Social Cost

April 8th, 2011

Judge Silberman has a stinging concurring opinion in Esmail v. Obama attacking the Court’s opinion in Boumedienne. Lyle Denniston has a good analysis here. I wanted to focus on his cost-benefit analysis through the lens of the constitutionality of social cost.

My second point, not unrelated to the first, goes to theunusual incentives and disincentives that bear on judges on theD.C. Circuit courts – particularly the Court of Appeals – charged  with deciding these detainee habeas cases. In the typical criminal case, a good judge will vote to overturn a conviction ifthe prosecutor lacked sufficient evidence, even when the judgeis virtually certain that the defendant committed the crime. Thatcan mean that a thoroughly bad person is released onto ourstreets, but I need not explain why our criminal justice systemtreats that risk as one we all believe, or should believe, is justified.

When we are dealing with detainees, candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism. One does not have to be a “Posnerian” – a believer that virtually all law and regulation should be judged in accordance with acost/benefit analysis – to recognize this uncomfortable fact.

Ouch. This mirrors Justice Scalia’s dissent in Boumedienne, where he wrote that the Court’s opinion “will almost certainly cause more Americans to be killed.”

What should the Posnerian cost/benefit analysis be in such a case?

Silberman concludes with sharp elbows to the Supreme Court and the DOJ.

It becomes a charade prompted by theSupreme Court’s defiant – if only theoretical – assertion of judicial supremacy, see Boumediene, 553 U.S. 723, sustained by posturing on the part of the Justice Department, and providing litigation exercise for the detainee bar.