344
Scalia, J., dissenting
the Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1113-1114, and nn. 9-11 (1970) (quoting Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385); Oaks, Legal History in the High Court—Habeas Corpus, 64 Mich. L. Rev. 451, 453 (1966). And, of course, going beyond inquiry into the legal authority of the executive to detain would have been utterly incompatible with the well-established limitation upon habeas relief for a convicted prisoner: "[O]nce a person had been convicted by a superior court of general jurisdiction, a court disposing of a habeas corpus petition could not go behind the conviction for any purpose other than to verify the formal jurisdiction of the committing court." Id., at 468, quoted in Swain v. Pressley, 430 U. S. 372, 384-385 (1977) (Burger, C. J., concurring in part and concurring in judgment).
In sum, there is no authority whatever for the proposition that, at the time the Suspension Clause was ratified—or, for that matter, even for a century and a half thereafter—habeas corpus relief was available to compel the Executive's allegedly wrongful refusal to exercise discretion. The striking proof of that proposition is that when, in 1954, the Warren Court held that the Attorney General's alleged refusal to exercise his discretion under the Immigration Act of 1917 could be reviewed on habeas, see United States ex rel. Accardi v. Shaughnessy, supra, it did so without citation of any supporting authority, and over the dissent of Justice Jackson, joined by three other Justices, who wrote:
"Of course, it may be thought that it would be better government if even executive acts of grace were subject to judicial review. But the process of the Court seems adapted only to the determination of legal rights, and here the decision is thrusting upon the courts the task of reviewing a discretionary and purely executive function. Habeas corpus, like the currency, can be debased by over-issue quite as certainly as by too niggardly use. We would . . . leave the responsibility for suspension or
Page: Index Previous 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 NextLast modified: October 4, 2007