Continuing his highly erratic course of commentary on the Supreme Court in recent years—a course that Matt Franck and (to a lesser extent) I have critiqued in numerous Bench Memos posts—George F. Will today attacks John McCain for calling last week’s Boumediene decision on Guantanamo detainees “one of the worst decisions in the history of this country.” Let’s consider Will’s arguments:
1. Will first asks rhetorically whether Boumediene ranks with Dred Scott, Plessy v. Ferguson, and Korematsu. One answer is that it’s too early to know for sure. The opprobrium that each of those decisions has earned has grown over time, and I’m willing to bet that the historical record will show that the immediate critics of those decisions also faced derision. A second answer is that a ruling does not have to rank with what Will evidently considers the Court’s three worst decisions—where, one wonders, is Roe?—to be among the worst decisions. A third answer is that McCain has plenty of respected company for his judgment, including, it would seem, four justices of the Supreme Court. That alone, of course, doesn’t mean McCain’s view is right, but it does make rather strange the dripping contempt that Will displays for it.
2. Will calls into question whether McCain has read all “126 pages of opinions and dissents”—as though one would have to suffer through, say, Justice Kennedy’s lengthy and (to his mind) inconclusive discussion of history in order to form an assessment of the ruling. Especially as a non-lawyer, McCain is entitled to rely on readings of key excerpts and the guidance of his advisors.
Moreover, it is far from clear that Will himself has read, or at least understood, Boumediene. It’s striking that nothing in his discussion of the case acknowledges, much less grapples with, the elementary fact that the vaunted habeas right was being invoked, not by citizens, but by aliens abroad. He tries to rebut Chief Justice Roberts’s criticism of the “set of shapeless procedures to be defined by federal courts” by stating his own hope that the “defining” of the habeas procedures “will be by Congress,” but he fails to note that the Boumediene majority states that such matters “are within the expertise and competence of the District Court to address in the first instance” (with later instances contemplated to be undertaken by reviewing courts). More broadly, Will doesn’t present, much less rebut, the core arguments of the dissenters, and he seems to think that his observation that “public hearings might benefit the Bush administration” counts as some sort of legal argument.
3. Will finds conclusive his observation that “there are not five fools or knaves” on the Court. Under that shoddy reasoning, nothing that the Court would do could be labeled foolish. But, of course, the history of mankind demonstrates that plenty of folks who are not complete fools or knaves are capable of doing foolish or knavish things. (Chief Justice Taney in Dred Scott, for one apt example.) To observe, as Will does, that the question in Boumediene “is a matter about which intelligent people of good will can differ” is not to establish that neither side can possibly be wrong—indeed, terribly wrong.