Antonin Scalia

“ Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle." Ex parte McCardle, 7 Wall. 506, 514 (1869) (emphasis added) .
To alter this plain meaning, our cases have required an explicit reservation of pending cases in the jurisdiction­repealing statute. For example, Bruner, as mentioned, looked to whether Congress made "any reservation as to pending cases." ”

“ Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have 'sound...instinct [s] ,'...and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance." Landgraf, 511 U.S., at 270 (opinion for the Court by Stevens, J.) . ”

“ An effective-date provision does not render a statute applicable to "conduct that occurred at an earlier date," but of course it renders the statute applicable to conduct that occurs on the effective date and all future dates—such as the Court's exercise of jurisdiction here. The Court seems to suggest that, because the effective-date provision does not authorize retroactive application, it also fails to authorize prospective application (and is thus useless verbiage) . This cannot be true.↑ . A comparison with Lindh v. ”

“ Notwithstanding the ill-considered dicta in the Court's opinion in Rasul, 542 U.S., at 480–481, it is clear that Guantanamo Bay, Cuba, is outside the sovereign "territorial jurisdiction" of the United States. See id., at 500–505 (Scalia, J., dissenting) . Petitioner, an enemy alien detained abroad, has no rights under the Suspension Clause. ”

“ Though military commissions likewise do not implicate "the peculiar demands of federalism," considerations of interbranch comity [p. 677] at the federal level weigh heavily against our exercise of equity jurisdiction in this case. Here, apparently for the first time in history, see Motion to Dismiss 6, a District Court enjoined ongoing military commission proceedings, which had been deemed "necessary" by the President " [t] o protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks." ”

“ The relevance of this observation to the abstention question is unfathomable. The fact that Article III review is discretionary does not mean that it lacks "structural insulation from military influence," ante, at 587, and its discretionary nature presents no obstacle to the courts' future review of these cases. The Court might more cogently have relied on the discretionary nature of review to argue that the statute provides an inadequate substitute for habeas review under the Suspension Clause. ”

“ Though this case concerns a habeas application challenging a trial by military commission, DTA §1005 (e) (1) strips the courts of jurisdiction to hear or consider any "application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." The vast majority of pending petitions, no doubt, do not relate to military commissions at all, but to more commonly challenged aspects of "detention" such as the terms and conditions of confinement. ”

“ The Court claims that I "rea [d] too much into" the Bruner line of cases, ante, at 577, n. 7, and that "the Bruner rule" has never been "an inflexible trump," ante, at 584. But the Court sorely misdescribes Bruner—as if it were a kind of early-day Lindh v. Murphy, 521 U.S. 320 (1997) , resolving statutory ambiguity by oblique negative inference. On the contrary, as described above, Bruner stated its holding as an unqualified "rule," which "has been adhered to consistently by this Court." ”

“ Schumer, 520 U.S. 939, 951 (1997) , that a statute that "creates jurisdiction where none previously existed" is "as much subject to our presumption against retroactivity as any other." See also Republic of Austria v. Altmann, 541 U.S. 677, 695 (2004) (opinion for the Court by Stevens, J.) ; id., at 722 (Kennedy, J., dissenting) . The Court gives our retroactivity jurisprudence a dazzling clarity in asserting that "subsections (e) (2) and (e) (3) 'confer' jurisdiction in a manner that cannot conceivably give rise to retroactivity questions under our precedents." [2] Ante, at [p. 663] 582. ”

“ Because I have described how outrageous these claims are—about the exercise regime, the reading materials—most Americans would be highly offended to know that terrorists are suing us in our own courts about what they read. ”

“ St. Cyr, 533 U.S. 289, 314, n. 38 (2001) ("Congress could, without raising any constitutional questions, provide an adequate substitute through the courts of appeals") .
Petitioner has made no showing that the postdecision exclusive review by the D. C. Circuit provided in §1005 (e) (3) is inadequate to test the legality of his trial by military commission. His principal argument is that the exclusive­review provisions are inadequate because they foreclose review of the claims he raises here. ”

“ Subsections (e) (2) and (e) (3) of §1005 resemble the provisions of AEDPA at issue in Lindh (whose retroactivity as applied to pending cases the Lindh majority did not rule upon, see id., at 326) , in that they "g [o] beyond 'mere' procedure," id., at 327. They impose novel and unprecedented disabilities on the Executive Branch in its conduct of military affairs. Subsection (e) (2) imposes judicial review on the Combatant Status Review Tribunals (CSRTs) , whose implementing order did not subject them to review by Article III courts. ”