American Elephants

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Most people don’t read Supreme Court opinions, I think assuming them to be written in dry, indecipherable legal gobbledygook. The opinions of Chief Justice Roberts and Antonin Scalia are anything but. They are exceptionally eloquent and erudite. A pleasure to read — completely accessible to the little guy, like me. I wish more people knew this, because it is a great educational opportunity.

Yesterday’s decision by a bare majority of the liberal justices joined by the erratic Justice Kennedy, who authored the opinion, can be read here.

But I want to present key excerpts from Chief Justice Roberts’ and Justice Scalia’s scathing dissents, compiled by Ed Whelan at National Review’s Bench Memos .

Both make crystal clear just how activist the decision was. They point out step by step the precedent the majority ignored, the tradition they trampled, the constitutional principles they violated and the powers they usurped.

Starting with excerpts from Chief Justice Robert’s dissent (joined by Scalia, Thomas and Alito):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

It is grossly premature to pronounce on the detainees’ right to habeas without first assessing whether the remedies the DTA system provides vindicate whatever rights petitioners may claim.

Simply put, the Court’s opinion fails on its own terms. The majority strikes down the statute because it is not an “adequate substitute” for habeas review, but fails to show what rights the detainees have that cannot be vindicated by the DTA system.

The only issue in dispute is the process the Guantanamo prisoners are entitled to use to test the legality of their detention. Hamdi concluded that American citizens detained as enemy combatants are entitled to only limited process, and that much of that process could be supplied by a military tribunal, with review to follow in an Article III court. That is precisely the system we have here. It is adequate to vindicate whatever due process rights petitioners may have.

The Court today invents a sort of reverse facial challenge and applies it with gusto: If there is any scenario in which the statute might be constitutionally infirm, the law must be struck down.

[In the majority’s view,] any interpretation of the statute that would make it an adequate substitute for habeas must be rejected, because Congress could not possibly have intended to enact an adequate substitute for habeas. The Court could have saved itself a lot of trouble if it had simply announced this Catch-22 approach at the beginning rather than the end of its opinion.

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

And Justice Scalia’s dissent (joined by Roberts,Thomas and Alito):

Today, for the first time in our Nation’s history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war…. The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is entirely ultra vires.

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. The President relied on our settled precedent in Johnson v. Eisentrager (1950), when he established the prison at Guantanamo Bay for enemy aliens.

[I]n response [to the Court’s 2006 ruling in Hamdan v. Rumsfeld], Congress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners captured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting….What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

What drives today’s decision is neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated notion of judicial supremacy. The Court says that if the extraterritorial applicability of the Suspension Clause turned on formal notions of sovereignty, “it would be possible for the political branches to govern without legal constraint” in areas beyond the sovereign territory of the United States. That cannot be, the Court says, because it is the duty of this Court to say what the law is. It would be difficult to imagine a more question-begging analysis.… Our power “to say what the law is” is circumscribed by the limits of our statutorily and constitutionally conferred jurisdiction. And that is precisely the question in these cases: whether the Constitution confers habeas jurisdiction on federal courts to decide petitioners’ claims. It is both irrational and arrogant to say that the answer must be yes, because otherwise we would not be supreme.

Putting aside the conclusive precedent of Eisentrager, it is clear that the original understanding of the Suspension Clause was that habeas corpus was not available to aliens abroad, as Judge Randolph’s thorough opinion for the court below detailed.…It is entirely clear that, at English common law, the writ of habeas corpus did not extend beyond the sovereign territory of the Crown.

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, 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. The Nation will live to regret what the Court has done today.

If for no other reason, this election is essential. It is imperative to the future of the nation, to the rule of law, that we tip the balance of this court to the strict constructionists who understand judicial restraint, and believe the constitution means what it says. John McCain, despite his many flaws, has promised to appoint just such justices, and with the excellent conservative judicial advisers he has picked to work for him, I believe he will.

Any number of justices may retire during the next four years. One at least, likely two, maybe more. Justice Kennedy, the only remaining “swing” vote, might retire — and these people are all getting up there. Justice Scalia is 72, Justice Kennedy will be 72 next month. Some other members of the court are older. God forbid anything should happen to any of them, but it could.

And while some people argue that McCain wouldn’t be able to get his nominees through anyway — I think he probably can. McCain has a long-nurtured image of getting along with the other side that will buy him political capital in this regard. But even if he doesn’t get his first choices through, McCain’s second and even third choices will be far better than anyone Obama would nominate. Who knows how much damage Obama could do to the judiciary if he were there for four years, let alone eight! He will undoubtedly appoint more Ruth Bader -Ginsburgs — he has named her specifically as the type of justice he would nominate — perhaps even Hillary Clinton. One thing is for certain, Obama’s nominations would devastate judicial restraint in America in ways that would have repercussions for generations.

Remember that when you hear people say they could never vote for McCain. As distasteful as it may be to some proud conservatives, the best interests of the nation require it, don’t they?

(h/t Bench Memos)

UPDATE: John McCain has come down forcefully against the decision, calling it, appropriately, “one of the worst decisions in the history of this country.” Good. It is!