Legal formalism is a consistent theme in Justice Scalia’s voluminous opinions. Yet one should not automatically associate formalism with either originalism or conservatism. Justice Scalia’s formalist interpretation of the Constitution occasionally aligned him with the more liberal justices on the Court, as in Hamdi v. Rumsfeld. The petitioner, a U.S. citizen, was detained as an enemy combatant and sought to exercise his habeas corpus rights in court. Justice Scalia dissented along with Justice Stevens, then one of the most liberal justices on the Court, arguing that U.S. citizens are entitled to habeas corpus rights even when detained overseas during wartime. To fully understand the Hamdi dissent, supported by two justices with drastically different judicial ideologies, it helps to first examine the connection between formalism, political accountability, and individual liberty under Justice Scalia’s jurisprudence.

Morrison v. Olson was Justice Scalia’s first great dissent. The case concerned the now-terminated Office of the Independent Counsel (“OIC”), which was created in the aftermath of Watergate to probe potentially criminal conduct of senior government officials. Once selected by a panel of judges, the Independent Counsel possessed all of the Department of Justice’s investigative and prosecutorial powers. Unlike other officers of the Executive Branch, the President could not dismiss the Independent Counsel. The security against removal was necessary for any Independent Counsel who sought to investigate Executive wrongdoings.

An eight-justice majority upheld the constitutionality of the OIC, drawing a fierce rebuke from Justice Scalia. He thought an independent counsel exercising “executive power free from the President’s control” undermined the principle of separation of powers. Morrison v. Olson, 487 U.S. 654, 708 (1988).

Moreover, the prosecutorial powers amassed by the Independent Counsel, combined with limited threat of removal, created a threat to individual liberty. Justice Scalia argued the best protection against prosecutorial abuse is the President’s ability to remove prosecutors. As the head of the Executive, the President will be held accountable by the public for any arbitrary prosecutorial decisions. Id. at 728-29. The people know exactly who to blame when prosecutors break bad. The discretion to remove is not unlimited. As Richard Nixon found out during the Saturday Night Massacre, public backlash significantly constrains the President’s ability to remove federal prosecutors in the midst of an investigation.

However, because the Independent Counsel could not be removed at will by the President, any prosecutorial misbehavior could not be effectively deterred through political means. The Independent Counsel lacks constitutional legitimacy because it lacked institutional political accountability, either to the President or the public. Moreover, the imbalance of power between the prosecutor and the prosecuted creates the specter of a malicious investigation. Id. at 729.

Although Justice Scalia’s formalist jurisprudence was typically rigid and unyielding, the Morrison dissent shows the distinction between formalism and functionalism can be a blurry one. The formalist separation of powers argument put forth by Justice Scalia contains a functionalist goal: the protection of individual liberty against overzealous and misbehaving Executive officers.

In Hamdi, Justice Scalia argued that a formalist interpretation of the Suspension Clause is necessary for the functionalist goals of political accountability and the preservation of individual liberty. While the Authorization for Use of Military Force (“AUMF”) gave Congressional blessings to the President to wage the War on Terror, nothing in the text of the AUMF suggested Congress intended to suspend the writ of habeas corpus. He recognized that wartime exigencies might require the indefinite detention of citizens accused of criminal conduct. However, Congress, acting as the people’s representatives, must formally and officially suspend the writ of habeas corpus under Art. I, Section 9, Clause 2 of the Constitution. The detention of Hamdi through the Authorization for Use of Military Force fell far short of the formal requirements under the Suspension Clause. Hamdi v. Rumsfeld, 542 U.S. 507, 574 (2004).

For Justice Scalia, the formality of the Suspension Clause not only protects individual liberty against government tyranny, but also holds the political branches accountable for the act of suspending habeas corpus rights. If the President and Congress think the suspension of habeas corpus is a necessity, then they must be willing to be bear the political consequences of the decision and be held accountable by the electorate. The constriction of civil rights, even during times of war, must be “done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court.” Id. at 578.

Both Morrison and Hamdi reflect Justice Scalia’s belief that constitutional formalism will hold the political branches accountable for any intrusion into individual liberty. Yet despite this rather functionalist approach, Justice Scalia has helped  to make it increasingly more difficult for ordinary citizens to hold the political branches accountable. Citizens United and McCutcheon significantly increased the influence of wealthy donors in national politics; Shelby County gutted the Voting Rights Act and opened the door for systematic disenfranchisement at the state level. All of these decisions have restrictive impact on access to the political system, making it harder to hold the political branches accountable, which defeats the purpose of a constitution written to encourage political participation.