Bench Memos

NRO’s home for judicial news and analysis.

Re: The Times vs. History


A sharp-eyed reader points out an error on my part when I called the 2004 ruling in Rasul v. Bush an assault on the Constitution in my posting below. In fact, my reader notes, Rasul was a case entirely about the interpretation of the then-prevailing habeas statute, and didn’t involve any constitutional issues.

Could I slide out of this by pointing out that any time the Supreme Court abuses its authority to interpret the laws, it commits an assault on the Constitution? Yeah, sure. But the fact is that I was wrong or at least misleading in my characterization of Rasul. I should have more accurately said it was an assault on the rule of law for the Court to distort the plain meaning of a statute that had been understood otherwise for years.

My mistake is the bad news. The good news is that remembering that Rasul was a case of statutory interpretation makes the New York Times’s editorial even sillier. The Graham-Levin amendment simply changes the statute the Court was interpreting in Rasul, and in doing so reverses that ruling in a straightforward and constitutionally unobjectionable manner. So all the huffing and puffing at the Times turns out to be even more vacuous.


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