Syllabus | Opinion [ Rehnquist ] | Concurrence [ Stevens ] | Concurrence [ Scalia ] |
---|---|---|---|
HTML version PDF version | HTML version PDF version | HTML version PDF version | HTML version PDF version |
GEORGE J. TENET, INDIVIDUALLY, PORTER
J.
GOSS, DIRECTOR OF CENTRAL INTELLI-
GENCE AND DIRECTOR
OF THE CEN-
TRAL INTELLIGENCE AGENCY, AND
UNITED STATES,
PETITIONERS v.
JOHN DOE et ux.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 2, 2005]
Justice Scalia, concurring.
I join the Courts opinion because I do not agree with Justice Stevenss concurrence, painting todays action as a vindication of his opinion concurring in the judgment in Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 112 (1998), in which he would have held that a jurisdictional bar does not prevent the resolution of a merits issue. When todays opinion refers to the issue in Totten v. United States, 92 U.S. 105 (1876), as the sort of threshold question we have recognized may be resolved before addressing jurisdiction, ante, at 5, n. 4, it is surely not referring to the run-of-the-mill, nonthreshold merits question whether a cause of action exists. And when it describes the unique and categorical nature of the Totten bara rule designed not merely to defeat the asserted claims, but to preclude judicial inquiry, ibid., it is assuredly not describing the mere everyday absence of a cause of action. As applied today, the bar of Totten is a jurisdictional one.
Of course even if it were not, given the squarely applicable precedent of Totten, the absence of a cause of action is so clear that respondents claims are frivolousestablishing another jurisdictional ground for dismissal that the Steel Co. majority opinion acknowledges. See 523 U.S., at 89.