Nigh on 50 years ago, the constitutional scholar Alexander Bickel wrote that "[t]he least dangerous branch of the American government is the most extraordinarily powerful court of law the world has ever known." The Least Dangerous Branch: The Supreme Court at the Bar of Politics 1 (1962). The Supreme Court’s 5-4 decision this week in Boumediene v. Bush, No. 06-1195 (U.S. June 12, 2008), proves, if nothing else, Professor Bickel’s insightfulness on that point.
Today, Linda Greenhouse, the chief legal reporter-analyzer (for awhile longer) of The New York Times, examines the short-term political implications of Boumediene. Article here.
On Friday, the WSJ editorial page shied from overtly political analysis, writing instead of the majority opinion’s "dissembl[ing]" and "plainly dishonest" analysis. "In a stroke," it says, Justice Anthony Kennedy "and four other unelected Justices have declared their war-making supremacy over both Congress and the White House." The editorial’s title? "President Kennedy".
That view echoes the dissenting justices. Chief Justice John Roberts observes, for example, that "[o]ne cannot help but think . . . that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants." Justice Scalia sounds the same theme, only with more vehemence:
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 like with the branch that knows least about the national security concerns that the subject entails.
The decision, Justice Scalia warns, "will almost certainly cause more Americans to be killed."
Will Boumediene affect the November elections? Ms. Greenhouse doubts it will sway many. Yet she sees in Boumediene a summing-up:
Habeas corpus, as such, is an unlikely crowd-mover. But the decision clearly tapped into deep feelings about the entire course of the Bush administration’s plan for the fight against terrorism. The debate among the justices was ostensibly over the fine points of constitutional history and interpretation. But what it revealed was a court as divided as the rest of the country, on the eve of a historic and perhaps close election, over the very nature of the post-Sept. 11 world.