First up, let me just say "whew" that enough vestigial respect for the Rule of Law existed within the Supreme Court to make this ruling. In a properly functioning Court, this would be 9-0. I can't help but give some credit to Ted Kennedy for killing the Bork nomination, who was replaced in nomination by none other than today's decisive vote, Anthony Kennedy. Had Bork reached the bench, there would be no such rulings. How fitting that it was not one, but two Kennedys that led to this momentous ruling.
I partly wonder if Justice Kennedy is considering his place in history with this ruling, having seen the writing on the wall of how history will judge the Bush team. Jeffrey Toobin never quite came out and said it, but he strongly implied that O'Connor regretted her decision in Bush v Gore. Maybe Kennedy does too. I know the extremism of the Bush administration helped me realize what the true face of conservativism was, and reject it entirely. We'll see if Kennedy is just throwing us a bone to prop up his "swing" status (not likely given the import of this issue to Bush and Unitary Executive types) or if he's actually drifted ideologically in the next set of rulings (due up the remainder of this month).
Republican John McCain told reporters in Boston that he had not yet read the opinion, but expressed concerns about the rights it might impart to the people being held there.
"These are unlawful combatants, they are not American citizens and I think we should pay attention to Justice Roberts' opinion in this decision," McCain said, referring to the chief justice's dissent. "But it is a decision that the Supreme Court has made. Now we need to move forward. As you know I always favored closing Guantanamo Bay and I still think we ought to do that."
Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain.
I like Obama's response. It's prominent on his web site too, so this isn't just some tacit endorsement of an issue he's fleeing from. He hits McCain too for supporting Gitmo (which I note McCain now runs from). He goes on to say:
This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy. We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach. I voted against the Military Commissions Act because its sloppiness would inevitably lead to the Court, once again, rejecting the Administration's extreme legal position. The fact is, this Administration's position is not tough on terrorism, and it undermines the very values that we are fighting to defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values.
Which is all pretty good stuff too, though Obama didn't fight the MCA hard enough at the time.
Three of the five Justices in the majority -- John Paul Stevens (age 88), Ruth Bader Ginsburg (age 75) and David Souter (age 68) -- are widely expected by court observers to retire or otherwise leave the Court in the first term of the next President. By contrast, the four judges who dissented -- Antonin Scalia, Clarence Thomas, John Roberts and Sam Alito -- are expected to stay right where they are for many years to come.
John McCain has identified Roberts and Alito as ideal justices of the type he would nominate, while Barack Obama has identified Stephen Breyer, David Souter and Ginsberg (all in the majority today). It's not hyperbole to say that, from Supreme Court appointments alone, our core constitutional protections could easily depend upon the outcome of the 2008 election.
It really is crunch time for the court. Assuming the Democrats keep or grow their Senate Majority, I would expect one or more of the oldest Justices to retire, even if McCain wins. At least they'll leave knowing a Democratic senate can block another Alito. But if McCain is president, we won't get another Souter, Ginsberg or Stevens. I'm glad Obama put this statement on his front page, at least. McCain has a prominent section on Judicial Nominees. Obama should too.
Finally, I can't help but take some glee in pondering how the Cheney/Addington approach to expanding Executive Authority is crumbling beneath them. They explicitly chose not to go to congress for all sorts of extra powers they could easily have gotten from the utterly cowed congressional Democrats and authoritarian Republicans of 2002. Instead, they thought it was beneath them to even ask for more power and thought they could just do as they saw fit and hide behind Article II. Maybe they figured the Supreme Court that gave them Bush V Gore would give them anything else they wanted in a post 9-11 environment. Now, after Hamdi and Boumediene their elaborate, ludicrous claims of Presidential authority are being torn out below them. The powers they could easily have had added to FISA in 2002 are a tough fight, one they might actually ultimately lose (crossed fingers). All they had to do was ask, and now it's too late. They won't make these mistakes again, remember this come the next Republican president with a national security emergency on his/her hands.
I look forward to President Obama signing the "George W. Bush Enhanced Congressional Oversight Powers act of 2009" (GWBECOP) under a Democratic trifecta.
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