In today’s Washington Post, at the outset of a column that unfairly attacks John McCain for his criticism of the Boumediene ruling conferring constitutional habeas rights on Guantanamo detainees, Ruth Marcus expresses her hope that conservatives succeed in turning the Supreme Court into a major election issue. I believe that Marcus grossly misestimates how a well-informed public would assess the relative prospects of McCain and Obama appointees to the Court. Consider:
1. Marcus observes that “the addition of one or two conservative justices could mean, if not Roe’s explicit demise, then a dramatic curtailing of the right to choose.” Overturning (or limiting) Roe would, of course, mean merely the restoration of abortion policy to the democratic processes, so the people, through their legislators, would be determining the scope of the euphemistic “right to choose”. The more American citizens understand that, and the more they recognize that Roe imposes the most radical abortion regime in the civilized world (essentially unrestricted abortion throughout all nine months of pregnancy), the more they support ending the judicial power grab that Roe effected.
2. Marcus observes that “the court is at a tipping point on issues that range from the scope of presidential power to the separation of church and state to the future of affirmative action.” Perhaps so. On all these issues, the Left of the Court has been far to the left of American citizens.
3. As importantly, Marcus utterly ignores lots of other issues that Stuart Taylor has identified on which Supreme Court picks by Obama would present a real threat (in Taylor’s words) of further “displacing democratic choices with made-up constitutional law” and of “strangulation” of representative government:
Based on the wish lists published by liberal judges and law professors, justices who fit Obama’s description [of his model appointee] might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.
Hmmm, I wonder how the American people generally stand on these issues—and on the threat of judicial power grabs on them.
Of course, my assessment is based on the assumption of a “well-informed” public. Marcus’s column, alas, seems more likely to misinform. Let’s look at her attack on McCain’s criticism of Boumediene:
First, in manifest illogic, Marcus imagines that McCain’s criticism of Boumediene as “One of the worst decisions in the history of this country” somehow implies that he thinks that it’s worse than Roe. Why can’t both be among the Court’s worst decisions? (Marcus’s criticism of McCain’s “evolving reactions” to Boumediene is also unfair. He said the day the ruling was issued that it “obviously concerns me,” and he offered his “one of the worst decisions” assessment the very next day. How does the fact that he reserved his stronger criticism until he had absorbed, and been advised on, the ruling remotely indicate that “legal issues are not at the center of McCain’s policy interests”?)
Second, Marcus thinks that McCain’s “reaction makes little sense” given his vow to shut down Guantanamo and ship its detainees to Fort Leavenworth. But McCain presumably understood that foreign detainees shipped from Guantanamo would be governed by procedures like those that the Boumediene majority declared inadequate, not that they would have habeas rights (under “a set of shapeless procedures to be defined by federal courts at some future date,” in Chief Justice Roberts’s words) as a first resort.
Third, Marcus assures us that the Boumediene ruling “will not have anywhere the disastrous consequences forecast” by Justice Scalia and McCain” because (as one of her two reasons) it “didn’t give al-Qaeda fighters an express ticket to federal court.” The trusting reader might not understand that the ruling did give all Guantanamo detainees “an express ticket to federal court.” All that Marcus is referring to is that the majority said that “it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody.” In other words, enemy terrorists seized, for example, on the battlefield might not have an immediate right to file a habeas petition. Gee, golly, that’s comforting.
Fourth, Marcus states that “a big part of what we believe in is the rule of law and the notion that people can’t be held indefinitely without a fair hearing.” Set aside for now Marcus’s failure to distinguish between American citizens and foreigners on American soil, on the one hand, and alien enemy combatants abroad, on the other. The statutory framework that the Court found inadequate provided a “fair hearing” as part of what Chief Justice Roberts describes as “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Indeed, as Robert points out, the statute provides the very protections that the Court in Hamdi v. Rumsfeld said must be made available to U.S. citizens detained on American soil. It’s the Court’s ruling in Boumediene—its defiance of sound precedent and what Roberts aptly calls its “constitutional bait and switch”—that is the biggest offense against the rule of law.
Let’s hope that the American public is better informed about the Supreme Court between now and November—and that Marcus gets her wish about the role that the Supreme Court plays in the presidential election.