Article

2008-06-20 Home Front: WoT

The Supreme Court Made a Mistake in 'Boumediene'

Archived material is restricted to Rantburg regulars and members. If you need access email fred.pruitt=at=gmail.com with your nick to be added to the members list. There is no charge to join Rantburg as a member.

Posted by Steve White 2008-06-20 00:00|| || Front Page|| [11129 views ] Top

#1 While correct in most particulars, I think this piece grossly understates the problem. This is nothing less than a full-blown constitutional crisis, verging on a constitutional break-down. The court is way out of its lane, and has usurped in its various Gitmo-related decisions both the treaty power and the authority to conduct war.

That the administration immediately and meekly complied with the ruling does not mask the problem. No one wants to admit how bad things are, because everyone lacks the guts and vision to do anything about it. Instead, as in this piece, they scramble to improvise some new mechanism.

The astonishing misbehavior of the court in these rulings, which Chief Justice Roberts termed "bait-and-switch" and Justice Scalia branded as outside the law, is actually a secondary matter - though grave enough in itself to raise basic institutional questions. The primary problem is the collapse of the basic constitutional framework with three co-equal branches, each with different powers - including the well-established authority of the executive to conduct war and the expressly assigned authority of the legislature to limit the courts' reach.

I'm no constitutional expert (though grimacing through the idiotic things Sen. Obama says about the constitution makes me feel like some sort of friggin' Felix Frankfurter) - but there's more than just bad faith and horrible reasoning at issue here.

The rule of law is absolutely in question in the US. The cowardice and mediocrity of the current political class leads me to think that the lawless situation will continue indefinitely.

Disgusting, infuriating, and amazing.

Posted by Verlaine 2008-06-20 01:05|| 2008-06-20 01:05|| Front Page Top

#2 Acting together, the Executive and Legislative branches can ignore the Judicial. The USSC doesn't have any way to enforce it's decision - by design.

Posted by mojo">mojo 2008-06-20 01:48|| 2008-06-20 01:48|| Front Page Top

#3 There is now the possibility of a Democratic Congress and Presidency, followed by the resignation of the older SC justices, and installation of a couple or three reliably leftist justices. That would ensure the continuation of the leftist project of using lawfare to hamstring the ability of the executive to conduct war. And of course also the continuation of the process of dismantling the Constitution in general.

Posted by Elmavirong Johnson3058 2008-06-20 07:08|| 2008-06-20 07:08|| Front Page Top

#4 Reminder: habeas corpus will work on a reverse onus basis. Suspects will have to show cause in order to secure release.

However, the fact that this junk was tossed prior to Summer recess, is suspicious. And elections will be on the mind in the Fall.

Remember how the slave-owner of the Taney court, upheld recovery of escaped slaves, by finding the negro to be "an inferior sort of being." (Dred Scot, 1857, SCOTUS)?

Posted by McZoid 2008-06-20 07:36|| 2008-06-20 07:36|| Front Page Top

#5 EJ3058:

All the more reason why John McCain must be the next President.

Posted by McZoid 2008-06-20 07:37|| 2008-06-20 07:37|| Front Page Top

#6 IMO, it was no mistake.

Posted by g(r)omgoru 2008-06-20 09:54|| 2008-06-20 09:54|| Front Page Top

#7 The "crisis" is best found in Scalia's comment in dissent - "we were just kidding" in reference to the prior holdings which led to this one. They led from the POTUS, through the congress, after the Hamdan rulings - all of which brought the other branches, arguably properly into their roles.

The problem with this decision is the destruction of the confidence of the people in the court. Hence, when the court rules, is it "just kidding"? How will it, and the lower courts, handle all the certain to follow subsidiary actions from this ruling? How can it maintain any level of consistency? And, ultimately, as Stalin asked the Pope, if it's on the path to blurring or elminating the distinction between military and civil legality, how many divisions does it have to enforce its writ?

Not a good opinion, and far less open to remediation or qualification than the Kelo opinion.

Posted by Harcourt Jush7795 2008-06-20 22:47|| 2008-06-20 22:47|| Front Page Top

23:55 RD
23:51 Thaimble Scourge of the Pixies4707
23:42 RD
23:29 Harcourt Jush7795
23:23 RD
23:16 JosephMendiola
23:05 JosephMendiola
22:51 Frank G
22:49 Frank G
22:48 Frank G
22:47 badanov
22:47 Harcourt Jush7795
22:45 Pappy
22:40 Pappy
22:32 Pappy
22:26 trailing wife
22:06 Old Patriot
22:05 Anguper Hupomosing9418
21:41 Procopius2k
21:27 Procopius2k
21:19 Nimble Spemble
21:02 JosephMendiola
20:55 HalfEmpty
20:52 lotp