Spring Break
Supreme Court stands by Justice
Abstract:
Justice is making a comeback.
In a 5-4 vote, the U.S. Supreme Court dealt a striking blow to the Bush administration on June 12 by ruling that so-called enemy combatants being held at Guantanamo Bay, Cuba have the right to challenge their detention in federal court....
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Supreme Disgrace: Guantánamo Bay decision was a power grab
posted 6/30/08 @ 7:22 AM MST
I have now read through the Supreme Court's decision, as well as the dissents, in Boumediene v. Bush, in which the Court held that foreign terrorism suspects held at Guantánamo Bay have constitutional rights to challenge their detention there in U.S. courts. In doing so, the Court, in Chief Justice Roberts's words, "strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."
It's worth considering what needed to be done in order to achieve this outcome.
The Court decided that for the first time in American history, non-American enemy combatants detained abroad, in the course of an ongoing war, had a constitutional right to habeas corpus (a proceeding used to review the legality of a prisoner's confinement in criminal cases).
In order to confer habeas-corpus rights on unlawful enemy combatants, the Court -- in an opinion written by Justice Anthony Kennedy -- had to break from precedent, including the 1950 case Johnson v. Eisentrager, in which the Court ruled that non-citizen enemies had no access to U.S. courts in wartime and that when captured and imprisoned abroad, they had no right to a writ of habeas corpus in a U.S. court.
The Court's majority opinion includes a section in which Kennedy attempts to fundamentally reinterpret Eisentrager. The problem for the majority is that Eisentrager conclusively establishes the opposite of what the majority opinion held. In Justice Scalia's words:
Eisentrager thus held -- held beyond any doubt -- that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.... [The majority opinion] is a sheer rewriting of the case.... By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled.
More broadly, and relevant to the Kennedy opinion, English common law has never held that the writ of habeas corpus extended beyond the sovereign territory of the Crown.
Among the practical effects of this ruling is that, according to Scalia
The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today... It sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
What Boumediene v. Bush is really all about, as Justice Roberts wrote, is control of federal policy regarding enemy combatants. That is another way of saying this case was about power -- and Thursday's decision was a power grab.
And so it has come to this: The United States Supreme Court now routinely invents constitutional rights to support whatever social, political, and legal goals it deems desirable. It is so much easier to legislate from the bench than it is through the branches of government that were created by our Founders to do just that.
But if one is going to invent Constitutional rights out of thin air, it's worth asking: What moral universe do Justices Kennedy, Breyer, Ginsburg, Stephens, and Souter inhabit when they are willing to manufacture constitutional rights for unlawful enemy combatants who want to slit the throats and watch innocent Americans bleed and die while at the same time uphold manufactured constitutional rights that allow people to abort innocent unborn children?
What the Court decided Thursday was an intellectual, jurisprudential, and moral disgrace, and if John McCain is wise he'll make this decision a focal point of the presidential race.
It's worth considering what needed to be done in order to achieve this outcome.
The Court decided that for the first time in American history, non-American enemy combatants detained abroad, in the course of an ongoing war, had a constitutional right to habeas corpus (a proceeding used to review the legality of a prisoner's confinement in criminal cases).
In order to confer habeas-corpus rights on unlawful enemy combatants, the Court -- in an opinion written by Justice Anthony Kennedy -- had to break from precedent, including the 1950 case Johnson v. Eisentrager, in which the Court ruled that non-citizen enemies had no access to U.S. courts in wartime and that when captured and imprisoned abroad, they had no right to a writ of habeas corpus in a U.S. court.
The Court's majority opinion includes a section in which Kennedy attempts to fundamentally reinterpret Eisentrager. The problem for the majority is that Eisentrager conclusively establishes the opposite of what the majority opinion held. In Justice Scalia's words:
Eisentrager thus held -- held beyond any doubt -- that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.... [The majority opinion] is a sheer rewriting of the case.... By blatantly distorting Eisentrager, the Court avoids the difficulty of explaining why it should be overruled.
More broadly, and relevant to the Kennedy opinion, English common law has never held that the writ of habeas corpus extended beyond the sovereign territory of the Crown.
Among the practical effects of this ruling is that, according to Scalia
The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today... It sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.
What Boumediene v. Bush is really all about, as Justice Roberts wrote, is control of federal policy regarding enemy combatants. That is another way of saying this case was about power -- and Thursday's decision was a power grab.
And so it has come to this: The United States Supreme Court now routinely invents constitutional rights to support whatever social, political, and legal goals it deems desirable. It is so much easier to legislate from the bench than it is through the branches of government that were created by our Founders to do just that.
But if one is going to invent Constitutional rights out of thin air, it's worth asking: What moral universe do Justices Kennedy, Breyer, Ginsburg, Stephens, and Souter inhabit when they are willing to manufacture constitutional rights for unlawful enemy combatants who want to slit the throats and watch innocent Americans bleed and die while at the same time uphold manufactured constitutional rights that allow people to abort innocent unborn children?
What the Court decided Thursday was an intellectual, jurisprudential, and moral disgrace, and if John McCain is wise he'll make this decision a focal point of the presidential race.
Jim Montoya
posted 6/25/08 @ 11:26 PM MST
I agree that the supreme court made the right decision. As leaders in human rights it is the responsibilty of all Americans to be presented with the evidence against anyone accused of a crime. The court in it's ruling is taking a fundamental position aligned with the basic values of all human beings who believe that all are created equal. When McCain states that this was one of the worst decision in history of our country the court has ever made, I wonder if he thinks that this decision was worse than previous decisions that legalized slavery, denied rights of women to vote, segragated people on buses by skin color and kept Japanese-Americans in determent camps. All of these decisions have since been reversed by courts who keep the basic principles of human rights the focus behind thes rulings. I hope that future genrations will have leaders that make decisions that are consistent with these basic principles.
If the Supreme Court is boss, Congress is Dilbert.
posted 6/30/08 @ 7:06 AM MST
Have you ever had a boss who treated you like a child, second-guessed you, reworked whatever you did so that you felt no ownership of the final product? As a result, did you take your job less and less seriously precisely because you knew that whatever you produced wouldn't really be yours anyway?
Well, the Supreme Court is the boss, and Congress is the Dilbert. There was a time when the U.S. Congress took the Constitution very seriously. Even after Marbury v. Madison, the 1803 case that established the Supreme Court's power of judicial review, Congress and the president were still the chief guardians of the Constitution. Indeed, before the Civil War, only two acts of Congress were found unconstitutional by the Supreme Court.
These days, the Court seems to find duly enacted laws unconstitutional six days a week and twice on Sunday.
Lawmakers rarely bother their pretty little heads with the Constitution. Rather, they just load as much spit, tar, Vaseline, and whatever else they can think of on a legislative fastball and try to get it over SCOTUS' plate. If those imperial umpires don't call a constitutional strike, well, then -- voilá -- it must be constitutional.
Presidents are no better. George W. Bush, in his one act that does approach an impeachable offense, signed campaign finance "reform" in 2002, even though he made it clear he thought the law was unconstitutional. At the ceremony, he expressed his "concerns" over the fact that the law -- which he signed! -- "restrains the speech of a wide variety of groups on issues of public import in the months closest to an election."
But, have no fear, the super Court is here. "I expect," he explained, "that the courts will resolve these legitimate legal questions as appropriate under the law."
No sale. Congressmen, senators, and presidents alike swear to protect and defend the same constitution as the Supremes do. In the 19th century, Congress actually debated constitutionality with passion, and if it found a proposed law falling short of that standard, it was fixed or killed, not outsourced to the Supreme Court for retrofitting.
The Court, by assuming that responsibility, and the other branches of government, by surrendering it, have permanently damaged the constitutional order. Indeed, Thomas Jefferson believed that a judiciary with final jurisdiction over the constitutionality of presidential and legislative actions "would make the judiciary a despotic branch" of government.
Today, that despot has a name. It's Justice Anthony Kennedy. Kennedy rules -- thanks to his status as the court's swing vote -- as the true King of America.
For example, Congress and the president hammered out a system for treating enemy combatants held at Guantanamo Bay -- at the behest of the court. But that compromise wasn't to His Majesty's liking, so it was invalidated anyway in Boumediene v. Bush, which gave members of al-Qaeda more rights than captured Nazis in WWII.
Indeed, the whole debate in Congress has been over to what extent the Supreme Court should be running our POW system, not what our POW policy should in fact be.
And just this week, Justice Kennedy issued a diktat in which he quashed Louisiana's sovereign and popular decision to execute a man for raping his eight-year-old stepdaughter in a manner so brutal the details cannot be even hinted at in this space. Why? Not because such executions violate the sensibilities of the public, or the constitutional precedents, or even what Kennedy calls "evolving standards" of decency, but simply because they are at odds with the court's own sense of lèse-majesté.
Supreme Court critic Mark Levin has it right when he says that "every time the Supreme Court meets in secret conference, it sits as a constitutional convention, rewriting the Constitution at will."
Aside from a legalistic-yet-lawless despotism that makes the meaning of our Constitution hinge on how much fiber Justice Kennedy's diet has on a particular day, the result of this pathetic state of affairs is that the first branch of government doesn't take itself seriously.
It is merely a caucus of goodie-givers, sent to Washington to dole out trinkets to whomever it may. At least the president is still charged with life-or-death decisions from time to time. But Congress doesn't take itself seriously, so who can blame Americans for following its lead?
Well, the Supreme Court is the boss, and Congress is the Dilbert. There was a time when the U.S. Congress took the Constitution very seriously. Even after Marbury v. Madison, the 1803 case that established the Supreme Court's power of judicial review, Congress and the president were still the chief guardians of the Constitution. Indeed, before the Civil War, only two acts of Congress were found unconstitutional by the Supreme Court.
These days, the Court seems to find duly enacted laws unconstitutional six days a week and twice on Sunday.
Lawmakers rarely bother their pretty little heads with the Constitution. Rather, they just load as much spit, tar, Vaseline, and whatever else they can think of on a legislative fastball and try to get it over SCOTUS' plate. If those imperial umpires don't call a constitutional strike, well, then -- voilá -- it must be constitutional.
Presidents are no better. George W. Bush, in his one act that does approach an impeachable offense, signed campaign finance "reform" in 2002, even though he made it clear he thought the law was unconstitutional. At the ceremony, he expressed his "concerns" over the fact that the law -- which he signed! -- "restrains the speech of a wide variety of groups on issues of public import in the months closest to an election."
But, have no fear, the super Court is here. "I expect," he explained, "that the courts will resolve these legitimate legal questions as appropriate under the law."
No sale. Congressmen, senators, and presidents alike swear to protect and defend the same constitution as the Supremes do. In the 19th century, Congress actually debated constitutionality with passion, and if it found a proposed law falling short of that standard, it was fixed or killed, not outsourced to the Supreme Court for retrofitting.
The Court, by assuming that responsibility, and the other branches of government, by surrendering it, have permanently damaged the constitutional order. Indeed, Thomas Jefferson believed that a judiciary with final jurisdiction over the constitutionality of presidential and legislative actions "would make the judiciary a despotic branch" of government.
Today, that despot has a name. It's Justice Anthony Kennedy. Kennedy rules -- thanks to his status as the court's swing vote -- as the true King of America.
For example, Congress and the president hammered out a system for treating enemy combatants held at Guantanamo Bay -- at the behest of the court. But that compromise wasn't to His Majesty's liking, so it was invalidated anyway in Boumediene v. Bush, which gave members of al-Qaeda more rights than captured Nazis in WWII.
Indeed, the whole debate in Congress has been over to what extent the Supreme Court should be running our POW system, not what our POW policy should in fact be.
And just this week, Justice Kennedy issued a diktat in which he quashed Louisiana's sovereign and popular decision to execute a man for raping his eight-year-old stepdaughter in a manner so brutal the details cannot be even hinted at in this space. Why? Not because such executions violate the sensibilities of the public, or the constitutional precedents, or even what Kennedy calls "evolving standards" of decency, but simply because they are at odds with the court's own sense of lèse-majesté.
Supreme Court critic Mark Levin has it right when he says that "every time the Supreme Court meets in secret conference, it sits as a constitutional convention, rewriting the Constitution at will."
Aside from a legalistic-yet-lawless despotism that makes the meaning of our Constitution hinge on how much fiber Justice Kennedy's diet has on a particular day, the result of this pathetic state of affairs is that the first branch of government doesn't take itself seriously.
It is merely a caucus of goodie-givers, sent to Washington to dole out trinkets to whomever it may. At least the president is still charged with life-or-death decisions from time to time. But Congress doesn't take itself seriously, so who can blame Americans for following its lead?
Craig Hawley
posted 6/26/08 @ 10:42 AM MST
The Supreme Court did the right thing today , by stating that individuals have the right to bear arms not just militias or national guard.
What a great victory for gun owners and real Americans.
What a great victory for gun owners and real Americans.
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Craig Hawley
posted 6/25/08 @ 12:07 PM MST
We shall see what the left does if Obama wins. My personal prediction is we will wee a wave of terror like never before as the left , Liberals and Democrats begin their politically correct , butt smooching of terrorists.
Last years from Jan to May in Anbar province attacks were like 200. This year same time period 14.
If you look at the size of Anbar Province , it has a lower murder rate than many areas of America that size. Strength works with the Middle East crowd and negotiations and appeasement is seen as weakness and increases terrorism.
Look at the results of the two methods. Bush went in and attacked and no one can deny that thousands of terrorists have been ki8lled ( although the Liberal press has not listed enemy casualties while posting ours the second they are killed ). He has now with the Surge won the hearts and minds of the people and is winning the war and close to creating a functioning democracy of Muslims right in the middle of our enemies territory as a beacon to them.
Now the Liberals and Democrats have screamed we should have used the world bodies and negotiated and this war could have been avoided. Of course the first point is if we were still negotiating all those dead terrorists would still be alive and able to attack us.
Now let's see how the lefts idea has worked. Iran's nukes have been dealt with exactly as the Liberals and left asked them to be. The UN and European Union ( those world bodies that we were promised by Liberals would be so effective ) have been negotiating with Iran directly , and using both sanctions and concessions to no avail.
In fact this negotiating was seen by Iran as a sign of weakness. In other words Iran says if the west could force us to quit they would. Since they are not attacking , they must be powerless.
So the result has been not only has Iran not given in to one single demand of these world bodies , but has laughed at them and America and increased their centrifuges many times over.
Now remember when I said the left will give rights to terrorists and their policies will create that wave of terror. Here is the proof people. We negotiated , used the world and did every thing the left said would work and instead it has increased the chance that we will have WWIII with Iran launching nukes against Israel and them responding with their 300 nukes.
NEGOTIATING HAS NEVER AND WILL NEVER WORK WITH RELIGIOUS ZAELOT TERRORISTS. ANY ONE LIKE OBAMA THAT THINKS IT DOES IS COMMITING SUICIDE.
Wake up America before it is to late. Our rights that we have as American citizens do not extend to non citizens and should not. They have not pledged allegiance and have no interest in out laws or country.
By the way the prisoners at Guantanamo have been heard joking that it is a Hilton hotel. That's right they often say they have a better life there than they did in their country.
They get food , get religious articles that we can't bring in to their countries even if visiting.
I am sorry but this idea that we somehow owe them the rights we enjoy is ludicrous.
And if one person from any prison is rel;eased by some ACLU lawyer or slick defense lawyer , I am going to join in a insurrection against the courts and government who has betrayed us and are traitors.
Think OJ Simpson. Gee I guess there is no chance one of these butchers that cut peoples heads off will walk.
How about the terrorists now can use their millions to just hire the best attorneys money can buy , and get off so they can go get another weapon , maybe a suitcase nuke this time , and detonate it.
All courtesy of our ignorant judges and organizations like the ACLU.
If I don't have these rights in their country , then they do not deserve them in mine.
Man if I am on the battle field and I have a guy trying to kill me with a rifle and I capture him , what are the chances I will let him live knowing that he will receive a lawyer and may not eve be convicted.
They used to do that in Nam. So by doing this if I was in combat I would just make sure there were no prisoners to give a lawyer to. If you pointed a weapon at me or my buddies and pulled the trigger , YOU DIE!
Bush and hi war has kept you safe , and many plots have been exposed and stopped.
If Obama is elected and we give rights to detainee terrorists , and he give no precondition talks to terrorists , we will see another attack and this time a lot more than 3000 will die.
I have been correct in my views so far and this will happen people. GAURETEED!!!!!!!
McCain in 08