Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—June 12

(Pixabay)

2008—In Boumediene v. Bush, the Supreme Court, by a vote of 5 to 4, rules that aliens detained as enemy combatants at Guantanamo have a constitutional habeas right to challenge the basis of their detention in the course of an ongoing war. In so doing, the majority invalidates the statutory scheme that Congress and the president developed. As Chief Justice Roberts states in his dissent (for all four dissenters):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Justice Scalia (also on behalf of all four dissenters) condemns the “game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” including the majority’s abandonment of the “settled precedent” of Johnson v. Eisentrager on which the president relied. Deploring the majority’s “inflated notion of judicial supremacy,” Scalia concludes:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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