“This Nation Will Live To Regret What The Court Has Done Today”

One of the professors at my law school teaches a course on “atrocious cases”—and today he will have something new to add to his syllabus. The Supreme Court handed down a ruling in the case of Boumediene v. Bush that represents one of the most blatant examples of judicial activism of our time. The Supreme Court, or at least five of its Justices, have decided that an alien outside the territory of the United States has the right to the writ of habeas corpus.

Chief Justice Roberts, in his dissent (joined by Justices Alito, Thomas, and Scalia) explains why this decision is both overly broad but also unsatisfying to all:

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, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), 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.

Justice Scalia’s dissent was blistering—even by his standards:

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary. “Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (BREYER, J., concurring).

Turns out they were just kidding.

Indeed they apparently were. Like Lucy pulling the football from Charlie Brown, the Supreme Court has told both the elected branches of government that they call the shots. If there were some strong constitutional logic behind this decision it would be one thing. But the majority opinion even admits that the law is at best murky on the issue of whether a foreigner has ever been granted habeas rights when they are outside the sovereign territory of the United States (and even that contention flies in the face of the weight of authority that decisively holds that they have no access to the writ). Undeterred, the Court chooses to dramatically rewrite settled precedent nonetheless. If prior cases had eviscerated and overruled the key Supreme Court precedent in Johnson v. Eisentrager, 339 U.S. 763 (1950), this decision has rendered it a nullity.

The goal of our courts is not to make the law, but to follow the Constitution. This decision is not grounded in the jurisprudence of the Constitution, but of the whims of five. Justice Scalia puts it bluntly, but accurately:

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.

I certainly hope that it will, but if certain members of the judiciary have their way it will be as a tyranny of the few. Our country is, and should be, a nation of laws, not men. It is sad that we are elevating the whims of five Justices over the will of those who are responsible to the people.