Stephen Breyer cites a history of executive branch abuses in stinging dissent

The Supreme Court ruled on Monday that several high-ranking Bush administration officials may not be sued for policies adopted after the attacks of Sept. 11, 2001. The officials include John Ashcroft, the former attorney general, and Robert S. Mueller III, the former F.B.I. director who is now investigating possible links between the Trump administration and Russia....

Justice Stephen G. Breyer summarized his dissent from the bench, a sign of deep disagreement.

“History tells us of far too many instances where the executive or legislative branch took actions during time of war that, on later examination, turned out unnecessarily and unreasonably to have deprived American citizens of basic constitutional rights,” he said in his written dissent, which canvassed several dark chapters in American history.

“We have read about the Alien and Sedition Acts, the thousands of civilians imprisoned during the Civil War, and the suppression of civil liberties during World War I,” he wrote. “The pages of the U.S. Reports” — which collect Supreme Court decisions — “themselves recite this court’s refusal to set aside the government’s World War II action removing more than 70,000 American citizens of Japanese origin from their West Coast homes and interning them in camps — an action that at least some officials knew at the time was unnecessary.”

Justice Breyer said that suits for money were a good way to check executive misconduct.

“In such circumstances,” he wrote, “courts have more time to exercise such judicial virtues as calm reflection and dispassionate application of the law to the facts. We have applied the Constitution to actions taken during periods of war and national-security emergency.”

Justice Ruth Bader Ginsburg joined Justice Breyer’s dissent.