Supreme Ideologues

With another 5 - 4 decision the Supreme Court has recently upheld basic provisions of the Constitution while simultaneously sending a stinging rebuke to the Bush administration's "enemy combatant" detainee policy. The Court was reviewing a challenge to the Military Commissions Act which had stripped habeus corpus rights from detainees in the wake of the Court's previous decision on detainee policies in Hamdan vs Rumsfeld. This was the third ruling over a six year span in which the Court has made clear that the administration's manufactured legal "system" surrounding detentions at the Guantanamo Bay gulag is un-Constitutional (read illegal). However, after each previous rebuke the Administration was able to work with it's Republican allies in Congress to pass legislation defying the Court's decision. Shamefully, the infamous Military Commissions Act that this most recent decision strikes down was passed with significant Democratic support as well.

Justice Kennedy, who has recently become the "centrist" swing vote on the Court, joined with the more liberal Justices; Ginsburg, Souter, Stevens and Breyer in arguing that, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” and asserting that the Court is the final arbiter of what the law is, not a self-styled unitary executive commander in chief. In many ways this decision was rather straightforward. The most relevant section of the Constitution, the so-called "Suspension Clause" (Article 1, Section 9, Clause 2), states, "The Privilege of the Writ of habeas corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The great writ is a cornerstone of English law, and came about as a response to the arbitrary power of English kings to exert the right to hold anyone for as long as they liked without ever having to explain to anyone why. Indeed, the drafters of the Constitution, having recently experienced the excessive and unjust powers of a king, in this case George III, felt strongly enough to enshrine the right to habeas corpus directly into the wording of the document. The clause is quite clear, the only exigencies that might abrogate it being invasion or rebellion, neither of which situation exists today by any reasonable interpretation of those words.

One might then reasonably ask how the Court could be so divided on this apparently basic issue? It essentially comes down to the idea that one either believes in the rule of law, or the rule of men. The four Justice minority in this case; Roberts, Alito, Scalia and Thomas, have left no doubt where they stand on this notion. They have consistently supported the "theory" that Mr. Bush as commander in chief is essentially the law, and can do as he pleases. They voted as a block in all the previous detainee cases, except for the Hamdan case for which Roberts had to recuse himself, since he had previously ruled against the habeas petition while sitting on the US Court of Appeals for the DC circuit. So, there can be little doubt what his decision would have been had he participated. This gang of four has consistently shown where their loyalties lie, not with the Constitution, but with a political party and it's extreme rightwing, neofascist ideology that is in thrall to power, whether it be executive, governmental (as in their own power on the Court), or the private power of corporations.

In his dissenting opinion, Chief Justice Roberts claimed that the Bush administration's detainee policy represented, “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” That these ostensible "protections" violate the supreme law of the land apparently carries no weight with Roberts. Moreover, the "procedures" put in place by the administration allow Bush to, by fiat, declare anyone an "enemy combatant" without a meaningful, independent judicial review. This is hardly the due process envisioned by the drafters of the Constitution when they added the Suspension Clause. And to think that we must suffer this Chief Justice for perhaps decades to come. While in his confirmation hearings Roberts pledged reasonableness and objectivity, his decisions on the Court since then suggests the exact opposite.

Of the other dissenting opinions that of Antonin Scalia was, not surprisingly, the most outrageous. Scalia argued that the decision, “warps our Constitution” and, went as far as to suggest that it will place American lives at risk, “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,” he argued. Of course, the only thing warped and twisted here is Scalia's logic. That a decision which restores an important right guaranteed by the Constitution represents a "warping" of it strains credulity. And isn't it ironic that Scalia, who helped halt the 2000 Florida recount that ensconced Bush in the White House, should then argue that this decision will cost more American lives, when his 2000 decision helped to set in motion the disastrous Bush presidency, that has cost many thousands of American soldiers their lives, not to mention hundreds of thousands of Iraqis. We can be thankful that there are still at least five Justices with some commitment to the Constitution and the rule of law, and it should be absolutely clear that the country can no longer tolerate the appointment of political idealogues to the Court. The stakes are far too high for that.