Hamdi won't matter but to the elites

Eugene Volokh, without arguing the merits of the Hamdi case, discusses the relative influence on a 'liberal' decision by justice Scalia vs. a 'conservative' decision by justice Breyer:Justices Scalia and Breyer

It matters how often conservatives are willing to make arguments skeptical of military power to other conservatives, and how often liberals are willing to make arguments that support military powers to other liberals. And I think that Justice Scalia's and Justice Breyer's votes will indeed affect the frequency of such intramovement arguments — arguments that I think are on balance good, both for the country and (at least in the medium and long run) the movement — and thus have significant extralegal effects as well as purely doctrinal ones.

My quarrel with Volokh is that, really, the effect of individual supreme court justices' decisions is insignificant: as long as the justice is mostly liberal, the liberals will merely take it in stride, no argument - period. The conservative elites, very few in number (but rabid in devotion to philosophy) will debate the matter as if they themselves are going to sit in for Scalia on the next decision. But the conservative/Republican average Joe's won't even be aware of the matter - only having known about the decision itself, because who actually reads Supreme Court opinions anyway? Far, far fewer than should.

So possibly the elitist Republicans will come to some kind of consensus on the matter, but whatever that consensus is, it will not be widely discussed by conservatives, so as to avoid division and confusion; it would become nothing more than a vague party line for separated-from-reality Republicans who want to say the right things to get the party's money.



(the Hamdi case):

Petitioner Hamdi, an American citizen whom the Government has classified as an “enemy combatant” for allegedly taking up arms with the Taliban during the conflict, was captured in Afghanistan and presently is detained at a naval brig in Charleston, S. C. Hamdi’s father filed this habeas petition on his be-half under 28 U. S. C. §2241, alleging, among other things, that the Government holds his son in violation of the Fifth and Fourteenth Amendments.