Jack Balkin has an incisive post discussing Scott Turow’s assessment of Justice Scalia’s role in future cases on civil liberties in the context of the "war on terrorism." Here is a taste:
There may be some civil liberties issues in the future in which Scalia joins the liberals. I doubt, however, that many of them will be the key issues in the War on Terror. That is because the Bush Administration has found ways to limit civil liberties without making a direct assault on the substantive content of the Bill of Rights. Rather, the Administration has found ways to route around the Bill of Rights by creating a parallel system of military detention and surveillance justified by claims of emergency and national security. That is to say, the Bush Administration has produced an early version of what I call the National Surveillance State. To the extent that the coming constitutional struggles over the National Surveillance State involve the scope of Presidential power (often abetted by Congress) and the rights of aliens, particularly aliens who are in the country illegally or are behing held overseas, Justice Scalia is not likely to be the great civil libertarian that Turow hopes he will be.