Today in the New York Times, Linda Greenhouse recognizes what her newspaper’s editorial writers failed to recognize last week (as I remarked here): that the Hamdan case, to be argued tomorrow, is heavily affected by the question whether the Reconstruction-era precedent of Ex parte McCardle applies in the present instance.
It seems that some law professors who filed a brief in Hamdan’s case agree that McCardle is on point here, but they don’t like the precedent. Greenhouse writes that McCardle “has been seen by many modern legal scholars as problematic, a regrettable expression of judicial weakness,” and then she quotes these unnamed professors as referring to the Detainee Treatment Act (which I discussed here yesterday) as “an unconstitutional interference with access to courts and an attack on the fundamental structure of the Constitution.”
Greenhouse could have mentioned—but, typically, did not—that many legal scholars don’t see McCardle as remotely problematic. In fact, if there is a more slam-dunk, obviously correct, and even easily teachable case on Article III than McCardle, I can’t think of what it would be.
Contrary to those law professors Greenhouse quotes, “interference with access to courts”—that is, statutory conditions on who can litigate what issues, in what federal courts, when and how, including whether they can at all—has been at the heart of congressional legislation on the judiciary since 1789. It’s actually part of the “fundamental structure of the Constitution.” How a straightforward withdrawal of jurisdiction, authorized by Article III, can be construed as an “attack” on the Constitution, is beyond me. But I suppose one can find a law professor somewhere to argue just about anything at all.