Unelected, politically unaccountable judges
That’s the dead-on reference in the last line in this NRO Bench Memos excerpt from the dissent written today on the Supreme Court’s staggering decision on Guantanamo Bay detainees. It’s written, incisively, by Chief Justice John Roberts. Who pierces the veneer of high officiousness of this decision with sharp cricitism for what it wrought.
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.
About control of federal policy. By unelected, politically unaccountable judges, whose today took control of the nation’s conduct of foreign policy even further out of the hands of the American people, writes Justice Roberts.
So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine—through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, has been unceremoniously brushed aside.
And not the rule of law…
unless by that is meant the rule of lawyers…
and the rule of judges not elected by the people and not accountable to them.
Justice Alito weighed in, joining the dissent in the strongest terms.
The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.
This issue was visited already in 2006 in the Hamdan decision, but overruled in this case.
What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.
It is, states Justice Alito, “both irrational and arrogant”. And we will sooner or later come to regret it.
Hopefully, before election day in November, when the nation sends the next president to the White House, to a term in which he will likely name at least two more justices to this already precarious court.
