Last year, we were told the Supreme Court had become the "Court that conservatives had long yearned for and that liberals feared." With the addition of Chief Justice Roberts and Justice Alito, there was now a more reliable five justice conservative majority — a "phalanx" in Ronald Dworkin's words — that would push the law in a rightward direction.
After one more Supreme Court term, it's clear that many spoke too soon. Sure, conservatives are cheering the Heller decision, but how "conservative" is a Court that invalidates the death penalty for child rape and declares that non-citizen detainees held outside U.S. sovereign territory by the military have a constitutional right to bring habeas actions in federal court, despite federal legislation to the contrary?
Viewed as a whole, this term saw a Court that often defied easy ideological characterization. There were relatively few 5-4 splits, particularly compared to OT2006, and many 5-4 divisions along untraditional lines. Overall, it was a Court term that defied the "conservative ascendancy" narrative.
I have more on OT2007 in this column on NRO.
UPDATE: I am also part of an online "debate" about this past term sponsored by the Federalist Society. Other participants include Mark Tushnet, Rick Pildes, Allyson Ho, Jack Beerman, Erik Jaffe, Jeff Rosen, Ed Whelan, Steven Calabresi, Marty Lederman, and Chuck Cooper. Thus far, it is more like a roundtable discussion than a "debate," but it may become more contentious as we focus in on the specifics of individual cases.
I'm not, right here and now, trying to defend the Court's decision in the Boumediene (sp?) case, but your comment assumes that Guantanamo is indeed outside U.S. sovereign territory. Maybe it is outside, but didn't the Court operate under the assumption that it was within U.S. sovereign territory? Maybe the Court was wrong to do so. But would a putatively "conservative" Court be contradicting its conservative bonae fides if one grants the assumption that Guantanamo is sovereign U.S. territory?
I'm not sure one way or the other, especially because I don't count myself a conservative. But I'd be interested in hearing the thoughts of others on this point.
I suppose it depends on what your definition of conservative is, but both of those decisions can be seen as based in traditional, conservative notions of the limited role of government. Federal legislation or not, a government should be required to account for the imprisonment of what it deems enemy combatants, and since the Bush administration has only advanced kangaroo courts in Gitmo, habeas seems a reasonable avenue to determine which detainees are merely innocent bystandarders (as some surely are) and which are truly dangerous.
If your definition of conservative, on the other hand, aligns with the post-Reagan culture war "right", then these decisions may be troubling. I've been amazed at all the hand-wringing and jubilation over Heller on this site with very little discussion of FISA from so-called conservatives.
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I doubt the "parade of horribles" that are supposedly going to follow in the wake of Boumediene will come to pass.
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I'm also livid that Heller came out 5-4. If this is a conservative Court, it is barely so.
The dispute over whether the Court is "conservative" or "liberal" seems to me largely a dispute over whether the Court is friendly to the program of the Republican Party or to the program of the Democratic Party. These parties, like most major American political parties in U.S. history that I am aware of, are almost necessarily coalitions for winning. They may each loosely favor some ideology, and their differences may be important, but it is hard to pin them down.
For this reason, I see the "split" on the Court as more partisan than ideological, more of a power play than a battle between whatever counts as "Conservative" or "Liberal."
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After Boumediene, the Circuit Court rejected Khadr's request to be tried in civilian court. So, even though he "brought a habeas action," the result was "go back to GTMO for your military trial."
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"It's a done deal," meaning H.R.6304 will pass, and that on July 8, 2008.
-- the Executive and the Legislature are arguing over whether the President has the power in a time of war, to listen to the conversations of people believed to be out of country who may be plotting act of war against us. --
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LOL. FISA doesn't have a "this only works in time of war" clause. It's about surveillance for foreign intelligence in peacetime, as well as wartime. If it was only about snooping foreigners in foreign lands, there'd be no law. FISA is (and always has been) a statute that purports to circumscribe or restrain surveillance in the US.
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And the Executive and Legislature may be having a bit of a show for the public, but at the end of the show, they will come out in agreement.
Sure, I'm a bit fond of a libertarian conception of conservativism. Not that it pertains to your point, or my original point, but the many of the detainees at Gitmo are not "combatants out of uniform". Many of them are not combatants at all, but unlucky people who were at the wrong place at the wrong time. (Some of whom were captured for a quick and easy ransom and handed over to troops in Afghanistan, all too eager to capture "combatants" and not skeptical enough of the newly forged alliance with the "Northern Coalition". Furthermore, the Bush administration has sought to deny habeas to U.S. citizens as well. Finally, we've been engaging in torture. So I suppose I'm a little concerned why conservatives (not the neo variety) would be displeased with Boumediene.
There are some of us who couldn't imagine these even being cert-worthy issues 10 years ago (adjusting for the fact that you are misrepresenting the actual holding in Boudemeine). To say that the Court is, on at least certain issues, to the left of the extreme right, is not the same as saying it is not "conservative."
I will not argue with you on the legal aspects of FISA. I typically lurk here because I am interested in the law but am not a lawyer. The only reason I commented was because it seemed that commenters were confusing the libertarian point of view with the conservative one. As to FISA being the law of the land I can only argue these two points. One: As I understand it, much of the fight has been over whether the intellegence community can listen to conversations the originate and terminate overseas but travel through our communications infrastructure. I have no problem with that whatsoever. Two: I remember another law passed legally by Congress that every President as claimed to ignore. It is called "The War Powers Act". In fact President Clinton ignored it entirely when he failed to get permission from the House during his little war in Kosovo. The excuse if memory serves is that it unconstitutionally constrains the President's war powers. I will happily return to lurking now.
The idea that Guantanamo is "outside US sovereign territory" is absurd. Only a lawyer could believe it.
Nothing new here.
And by no means all lawyers, or even a simple majority for that matter.
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The GWB brand of conservative seems fairly willing to bend "balance of powers" to the extent the notion is wordplay.
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Like the dissent in Heller, who is able to reconcile "shall not be infringed" as being in harmony with a complete ban on possession of a personal firearm in ones house; many of the administration's undercut the balance of power scheme that has been proven to work well and fairly in the past.
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See e.g., implementing military commissions without enabling legislation (Hamdan called 'em out on that).
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The issue of balance of power plays without regard to the size of government.
I don't think conservatives are monolithic. Conservatives often have strong disagreements when it comes to these sorts of issues. Comparing the War on Terror to WW2 is not really useful, and if you've been keeping abreast of the process in place in Gitmo, you'd have very little confidence it could provide even a modicum of justice for the detainees. If you want to hold international, open tribunals to try and sentence the detainees (as we did in WW2), go for it. Had the Bush Administration gone this route, the SCOTUS wouldn't have touched the issue.
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That's a canard, a false complaint, a distraction. FISA, without being revised, doesn't count the interception of foreign/foreign communications as "electronic surveillance." The statute that is fingered for the proposition is 50 USC 1801(f)(2)
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The argument goes that "if we listen for foreign-foreign, we can't help but accidentally get some that is to or from a person in the US. Fine - throw it out (see "minimization"). FISA never forbid obtaining foreign/foreign communications from US locations.
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But the TSP is defined as one end being in the US, and that is what the government wasn't to be able to do, without Court oversight. The TSP, by it's own terms, contradicts the limits on warrantless surveillance as spelled out in FISA - unless 100% (admitting of course, some errors) of the surveillance is within the executive's inherent power to gather foreign intelligence information.
-- I remember another law passed legally by Congress that every President as claimed to ignore. It is called "The War Powers Act". --
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Aye. There is considerable tension inherent between Congress and the Executive in the general area of warmaking and defensive actions.
Actually, Clinton claimed that his actions in Kosovo complied with the WPA. Now I happen to be pretty skeptical of that claim, but he did make the argument that he was in compliance.
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IOW, the administration wants the statute to roughly "authorize" an search regime that tracks the TSP.
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It also wants to preclude all substantive Court evaluation, so that the snooper becomes the sole authority in deciding whether a given warrantless snoop is constitutional, on the grounds that the communications contain "foreign intelligence information."
It seems if you call following precedent conservative, then Boumidiene was a liberal outcome and Kennedy and Heller could have gone either way based on precedent.
Yes, Amendment II enumerates an individual RKBA grounded in self-defense.
Yes, the detainees are being treated improperly.
Yes, the death penalty can sometimes be "cruel and unusual", even in cases of a truly heinous crime.
However, the true concern is that there seems to be no solid philosophical basis to the way these cases have been decided. There are clearly split along ideological lines, but in all of these cases one side, the other, or both has represented an ideology that simply does not comport with a reasoned approach to government.
Each side seems to be willing to toss the Constitution and its principles right out the window whenever they find its text inconvenient to their political agenda. This was meant to be a country of laws, not a country of men.
Neither the "liberals" nor the "conservatives" can be said to adhere to the classical definitions of those terms, and there is a wide streak of authoritarianism that runs through both factions.
But could it not be argued that each of the three decisions you refer to is, in plain fact, anti-authoritarian in its effect?
Absolutely...but look at which faction comprised the majority, and which side the dissent, in which case. It's practically ironic that the net effect in recent cases has been to run to a more libertarian decision.
Or.......maybe there's a flaw in our reasoning?
That said, in one important way the Court is potentially much more conservative than that. If Kennedy were to retire, a very conservative appointment would make it a very conservative Court, while a very liberal appointment would only make it a moderately liberal Court, which would be no more left than it now is right.
That all depends on who the "authority" is behind the authoritarianism. If the authority is the President, or Congress, or state legislatures, or the popular democratic will, then they're anti-authoritarian decisions. If the authority is Tony Kennedy, then all the decision are quite authoritarian.
That all depends on who the "authority" is behind the authoritarianism. If the authority is the President, or Congress, or state legislatures, or the popular democratic will, then they're anti-authoritarian decisions. If the authority is Tony Kennedy, then all the decision are quite authoritarian.
Just like amendments four and six through eight.
Richard Nixon, no darling of conservatives, campaigned (successfully) on a tough on crime platform, so I don't see why it wouldn't be conservative to find troubling the Supreme Court's striking down of the death penalty for child rape because it is supposedly cruel and unusual punishment.
Nothing ironic about it. We have four conservatives, four liberals, and one moderate libertarian. (Where "conservative", "liberal", and "libertarian" are defined as popularly understood in the U.S. today, not according to traditional or rigorous definitions). On any given issue, either conservatives or liberals, but not both, usually take a libertarian position. Throw in Kennedy's vote, which is usually moderately libertarian, and more often than not we get a moderately libertarian result. (Yes, I know there are exceptions to this general trend, such as Kennedy's unlibertarian view of property rights, and that Kennedy is not a doctrinaire or principled libertarian who would pass the purity test of a net.libertarian of any stripe).
So we have a moderately libertarian Court, but a very fragile one. Only one of the justices is actually a moderate libertarian, so any change that involves replacing a liberal justice with a conservative or vice versa will destroy the libertarian slant of this Court, in favor of either a liberal or a conservative slant.
Upshot: if you think liberal justices will retire or die first, vote Obama. If you think conservatives justices will go first, vote McCain.
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