Nielsen Hayden continues:

I’ve also skimmed Scalia’s dissent (starting on page 110 of that PDF), in which, having seen a terrorist scurrying around the floorboards of his kitchen, he leaps up onto a chair, robes clutched around his knees, and shrieks for a big strong executive branch to do away with our essential liberties so he can have a little temporary safety. But the real gem comes on page 127:

But so long as there are some places to which habeas does not run — so long as the Court’s new “functional” test will not be satisfied in every case — then there will be circumstances in which “it would be possible for the political branches to govern without legal constraint.” Or, to put it more impartially, areas in which the legal determinations of the other branches will be (shudder!) supreme.

Yes, he actually wrote “(shudder!)”! But don’t let that distract you. Check out the first half of that quote. The thing Scalia’s actually worried about is that this decision places li