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Thursday, July 1, 2004

The Supreme Court Locates its Spine

It still wasn't quite as vigorous a defense of liberty as I would have liked, but in the Hamdi, Padilla, and Rasul cases, the Supreme Court of the United States seems to have finally recalled that we have a Bill of Rights.

The U.S. is now more politically polarized than at any time in my memory. Discussions are increasingly framed in terms of "how our side can win"; we expend less and less effort considering whether we are in the right. At such a time, it's fascinating to see how the justices fell out.

Clinton appointee Clarence Thomas is the only one to side wholly with the Administration's "the president can do whatever he wants to whomever he wants in time of war" attitude.

Clinton appointee Ruth Bader Ginsburg and Bush pere appointee David Souter are perhaps the most civil libertarian, arguing that Hamdi's detention is unlawful and (along with Clinton apointee Breyer) that, regardless of any fiddling distinctions about jurisdiction, the court should have made it clear that Padilla must be charged or released.

Souter writes of Padilla, "At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process."

Reagan's Scalia and Ford's Stevens would free Hamdi, writing that "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." (Scalia, however, would agree with Thomas to not let the Guantanamo prisoners bring suits in U.S. courts).

The other Reagan and Nixon appointees make up the broad middle of the court, trying to find some accomodation between the demands of national security and those of personal liberty: you may be able to skimp a little on due process with enemy combatants out of uniform, they argue, but you can't simply forget about it.

Perhaps this democracy thing is going to work out after all.

Posted by benrosen at July 1, 2004 11:19 AM | Up to blog

What did Churchil say? "Democracy is the worst form of government, except for all the others that have been tried." It is interesting to see how the different justices come down on various issues. Scalia doesn't often dissagree with this administration - at least not in a way that portrays him as to the left of it!

Posted by: Levi at July 1, 2004 01:45 PM

I'm not sure "left" is really the term, except in this new polarized environment where "left" means "against Bush no matter what" and "right" means "for Bush no matter what". Scalia's position on Hamdi is really a libertarian one -- which is generally orthogonal to Left and Right.

In other news, Israel's Supreme Court also found a vertebra or two.

Posted by: Benjamin Rosenbaum at July 1, 2004 02:55 PM


"Clinton appointee Clarence Thomas is the only one to side wholly with the Administration's "the president can do whatever he wants to whomever he wants in time of war" attitude. "

Ahem! Even ignorant Australians know that Clarence Thomas was appointed by a Republican President -- George Bush Senior!


Shame, Ben, shame!!!
Michael Barry

Posted by: Michael Barry at July 14, 2004 09:19 AM


Huh, you know, I looked most of the others up, but I could have sworn I recalled Thomas being Clinton's appointee; I guess the Anita Hill controversy just felt more Clintonesque than Bush-I-ian... :-)

Posted by: Benjamin Rosenbaum at July 16, 2004 10:25 AM
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