More on the Supreme Court

The three habeas corpus cases (Hamdi, Padilla, Rasul) decided June 30, 2004 finally put a stop to the President’s claim that he had absolute power in the “war on terror” to take away the rights of any person, even a US citizen. This will be seen, I think, as a crucial moment in the constitutional history of the country, where the Supreme Court stared down the spectre of emergency powers and perpetual war, and stood by the constitution. At the end of the day, the Court said that we are a nation of laws, not men. That is what the President and Ashcroft do not understand – we cannot rely on their goodwill to protect our liberty. I am disappointed that the Court did not say the obvious: that the President is not a man of good will, and neither is Ashcroft. Both are petty tyrants who mean to do real harm to the country’s traditions of human rights.

History’s judgment on the Court may be more favorable than the decisions themselves. A fractured court did, in fact, permit the erosion of civil liberties in two crucial areas. First, it ducked the question of whether the President could declare persons to be “enemy combatants” on his own, but affirmed that Congress could authorize such a designation. Second, it affirmed the right of “enemy combatants” to due process, BUT did not guarantee that it would be in civilian (Article III) courts. Accordingly, Atty General Ashcroft has announced that only military tribunals are open to those whom he chooses to call “enemy combatants.”

On the Padilla case, which was the most outrageous abuse of power, the Court essentially punted. The Court’s 5-4 opinion is a bit comical, or tragi-comical. In it, the Court said that there were two questions: (1) was the petition filed in the right place, and (2) did it have merit. Because they decided the first question in the negative, the Court said, they declined to reach the merits. The comedy is that this shows that the Court would have supported the petition. After all, the Court could have just as easily approached the questions in reverse order and said that because enemy combatants have no right to petition, it didn’t matter where it was filed. So, still a victory for habeas corpus. Bush may have to prove that Padilla did something after all.

The really sad thing was the opinion by Justice Thomas. Thomas simply said that the court had no business getting involved in military affairs. He ignored the fact that the President has tried to declare the whole country a battlefield on which he has unlimited power. That’s just tragic.

Overall, the really disappointing thing is that a fractured court did not do what was done during the Warren Court: get together on unanimous language supporting human rights. We need this judicial leadership more than ever now. As Robespierre observed in 1792: “These are times of great events, and little men.”