Who should direct the war on terrorism–elected officials or a handful of unelected lawyers? The answer should be obvious to most Americans, and it is obvious to Judge John Roberts. In short, Roberts’s view is that when it comes to war the political branches–not the courts–should call the shots. This deferential judicial philosophy leaves key policy judgments in the hands of the president and Congress–those who are most accountable for policy decisions. It is also why Roberts is the right choice for chief justice of the U.S. Supreme Court.
On September 14, 2001 Congress authorized the president to use force against those who planned or aided in the September 11th attacks. Seventy-one days later Salim Ahmed Hamdan, Osama bin Laden’s bodyguard and personal driver, was captured on the battlefield in Afghanistan and transported to Guantanamo. The president later designated Hamdan an enemy combatant for his role as a member of al Qaeda, assigned his case for trial before a military commission, and charged him with murder and acts of terrorism directed against the U.S.
Hamdan challenged the president’s authority to form the military commissions, and his case eventually made it to the U.S. Court of Appeals for the D.C. Circuit. There, Roberts joined in the court’s opinion, which recognized that in creating the military commissions, the president not only relied on his authority as commander-in-chief, but also upon three separate congressional actions. Roberts and the court properly determined that the trial and punishment of enemy combatants is part and parcel of the conduct of war.
In another case involving a Ukrainian corporation, Roberts displayed his respect for the elected branches when he joined an opinion determining whether international law should trump laws enacted by American legislators. There the court determined that the political branches have the final say about whether and how international law applies in the U.S. The court flatly stated that international law should never prevail over contrary U.S. laws. Roberts appropriately subscribes to the view that elected officials, not foreigners or unelected judges, should determine our obligations under the law.
Two memos from Roberts’s tenure in the White House also demonstrate his view that the elected branches are entitled to substantial deference when it comes to foreign policy and national security. In one memo regarding the 1983 invasion of Grenada, Roberts stated that the President “has inherent authority in the international arena to defend American lives and interests.” In the other Roberts determined that a proposed act of Congress regarding immigration granted broad emergency powers to the President. Roberts’s analysis in both instances demonstrated a commitment to the belief that the elected branches have expansive power in the area of international affairs and national security.
When there is ambiguity in the interpretation of a law, or where Congress is acting in concert with the executive branch, Roberts is comfortable with the view that the courts should grant substantial weight to the reasoned determinations of elected officials. Roberts believes that judges should perform their duties with “humility grounded in the properly limited role of an undemocratic judiciary in a democratic republic.” Unfortunately not every judge shares this philosophy.
Roberts’s judicial philosophy is not only appropriate, it is vital to the successful execution of the war on terrorism. When it comes to protecting the nation, Americans trust elected officials more than unelected lawyers. This makes sense, because when public opinion shifts regarding the conduct of a war, elected officials must respond appropriately or find a new job. Democrats should take heed of this fact, because the Republican majority may not last forever. Democrats should want a Justice like Roberts who defers to the elected branches, rather than imposing his own personal policy preferences. This will be as important the next time a Democratic president faces a foreign threat as it is today.
While all judges may not support this judicial philosophy, all voters can because it ultimately puts power in their hands. When judges interpret the law as written, rather than deciding to write it themselves, the preferences of the people are honored and protected. On the other hand, when judges impose their individual policy preferences under the guise of interpreting the Constitution, the nation may be stuck with those preferences for a long time.
There is little indication Judge Roberts would ever seek to impose his personal views on the nation from the bench. This is important in many areas, but perhaps none more than the war on terrorism. In the end, this is why members of both parties should support Roberts.
– Gregory S. McNeal is research fellow in terrorism and homeland security at the Case School of Law’s Institute for Global Security Law and Policy, where he conducted research for the Department of Defense Office of Military Commissions.